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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 15,
1996
UNIFI, INC.
(Exact name of Registrant as specified in its charter)
New York 1-10542 11-2165495
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
No.)
incorporation)
7201 West Friendly Avenue, Greensboro, North Carolina 27410
(Address of principal executive offices) (Zip Code)
(910) 294-4410
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS
On March 20, 1996, Unifi, Inc. ("Unifi") announced that it
would redeem its $230 million in 6% Convertible Subordinated
Notes Due 2002 on April 22, 1996. The Notes were redeemed at
103.33% of principal amount, with accrued interest to the date of
redemption, or they were convertible by their holders into shares
of Unifi Common Stock prior to the close of business on April 12,
1996, on the basis of 33.7 shares of Common Stock for each $1,000
principal amount of Notes (with cash to be paid in lieu of any
fractional shares). Unifi was informed on April 12, 1996, by
First Union National Bank of North Carolina (paying agent for the
Notes) that holders of $51,000 of said Notes had elected to
convert their notes into 1,718 shares of Unifi Common Stock plus
cash for any fractional shares based on the closing stock price
of $23 7/8.
Unifi will take a one-time extraordinary after-tax charge to
its fourth quarter earnings of approximately $6.0 million or $.09
per share as a result of this transaction. The redemption was
funded by a $400,000,000 5-year Credit Agreement ("Credit
Facility") executed and effective April 15, 1996, between Unifi
as Borrower and NationsBank, N.A. ("NationsBank"), Wachovia Bank
of North Carolina, N.A. ("Wachovia") and Credit Suisse as
Lenders. NationsBank is committed to lend $200,000,000,
Wachovia is committed to lend $100,000,000 and Credit Suisse is
committed to lend $100,000,000. $239,025,103 of the Credit
Facility has been used to fund the above-referenced redemption
which was completed on April 22, 1996, and the balance of the
Credit Facility will be used for general corporate purposes.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
(4) Unifi, Inc. News Release dated March 20, 1996; Unifi,
Inc. Notice of Redemption of 6% Convertible Subordinated Notes
Due 2002 dated March 20, 1996; and First Union National
Certificate of Trustee dated April 24, 1996, filed herewith.
(10) Credit Agreement dated as of April 15, 1996, among
Unifi, Inc. as Borrower, The Several Lenders From Time To Time
Party Thereto and NationsBank, N.A. as Agent, filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
UNIFI, INC.
By: ROBERT A. WARD
Robert A. Ward
Executive Vice President
Dated: April 25, 1996
UNIFI, INC. ANNOUNCED REDEMPTION OF ITS 6% CONVERTIBLE
SUBORDINATED NOTES DUE 2002
GREENSBORO, NC -- MARCH 20, 1996 -- Unifi, Inc. announced
today that it will redeem its $230 million in 6% Convertible
Subordinated Notes Due 2002 on April 22, 1996. The Notes are
redeemable at 103.33% of principal amount, with accrued interest
to the date of redemption, or they may be coverted by their
holders into shares of Unifi Common Stock prior to the close of
business on April 12, 1996, on the basis of 33.7 shares of Common
Stock for each $1,000 principal amount of Notes (with cash to be
paid in lieu of any fractional shares). First Union National
Bank of North Carolina will act as paying agent for the Notes.
Assuming the Notes are redeemed and not converted, the
Company will take a one-time extraordinary after-tax charge to
its fourth quarter earnings of approximately $6.0 million or $.09
per share as a result of this transaction. The redemption will
be funded by a revolving credit facility led by NationsBank, N.A.
with a five-year maturity date.
Unifi's Managment feels that the current interest rate
environment, along with the current market value of its common
stock, offers a unique opportunity to replace the subordinated
notes with bank debt and to simultaneously address the potential
dilution of the Company's earnings from converstion of the Notes
to common stock.
NOTICE OF REDEMPTION
OF
6% CONVERTIBLE SUBORDINATED NOTES DUE 2002
TO THE HOLDERS OF THE UNIFI, INC. 6% CONVERTIBLE SUBORDINATED
NOTES DUE 2002:
Pursuant to Article Eleven of the Indenture dated as of
March 5, 1992 (the "Indenture"), by and between Unifi, Inc. (the
"Company") and First Union National Bank of North Carolina, as
trustee (the "Trustee"), with respect to $230,000,000 of 6%
Convertible Subordinated Notes due 2002 (the "Notes"), notice is
hereby given that the Company has elected pursuant to Section
1101 to redeem and pay all of the outstanding Notes on Monday,
April 22, 1996 (the "Redemption Date") at the principal amount of
the Notes plus accrued, unpaid interest to the Redemption Date
and a premium of 3.33% of the principal amount. Accordingly, on
the Redemption Date the Company will redeem the principal amount
of the Notes held by you at a redemption price of $1,033.30 per
$1,000 Note (103.33% of the principal amount of the Notes) plus
accrued, unpaid interest to the Redemption Date in the amount of
$6.17 per $1,000 Note. Interest on the Notes will cease to
accrue on and after the Redemption Date. The aforesaid
Redemption Price and accrued interest will become due and payable
by the Company upon the Notes to be redeemed on the Redemption
Date.
Payment of the redemption price and accrued, unpaid interest
will be made on Monday, April 22, 1996, upon presentation and
surrender of the Notes at the offices of the FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, Trustee, as follows:
- If By Mail - - If By Hand -
301 South College Street 230 South Tryon Street
Two First Union Center 11th Floor
Charlotte, NC 28288-1153 Charlotte, NC 28288-1153
or or
IBJ Schroder Bank's Trust IBJ Schroder Bank's Trust
One State Street - SCI One State Street - SCI
New York, NY 10004 New York, NY 10004
Pursuant to Article Twelve of the Indenture, the Notes
currently are convertible into shares of the Company's Common
Stock, $.10 par value per share (the "Common Stock"), at a
conversion rate of 33.70 shares of Common Stock per $1,000
principal amount of Notes converted. In accordance with Section
1203 of the Indenture, cash will be paid to any holder otherwise
entitled to receive a fraction of a share of Common Stock upon
conversion of Notes (after consideration of all Notes so
converted by such holder) based on the Closing Price of such
Common Stock on the date of conversion, as described in the
Indenture. Based on the closing price of the Common Stock on the
New York Stock Exchange on March 12, 1996 of $24.125, the market
value of the shares into which a $1,000 Note could be converted
was $813.02. Any Notes to be converted into Common Stock should
be mailed or hand delivered, with the Conversion Notice on the
back of such Note properly completed and signed by the holder of
the Note, to the Trustee at the appropriate address specified
above. If the shares that are issuable on conversion are to be
issued in a name otherwise than the noteholder, the Notes must be
duly endorsed by, or accompanied by appropriate instruments of
transfer duly executed by the holder of the Note and the
provision on the Conversion Notice completed. Notes presented
without the Conversion Notice on the back of such Note being
completed are deemed surrendered for redemption.
Pursuant to Section 1201 of the Indenture, your right to
convert the Notes into shares of Common Stock terminates at the
close of business on Friday, April 12, 1996, the tenth day
preceding the Redemption Date.
For your convenience, we have enclosed an envelope, which
you may use to deliver your Notes to the Trustee either for
conversion or redemption. We suggest that you return your Notes
by certified or registered mail.
UNIFI, INC.
March 20, 1996
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
CERTIFICATE OF TRUSTEE
The undersigned, Shannon Stahel of First Union
National Bank of North Carolina, hereby certifies as follows:
1. First Union National Bank of North Carolina is trustee under
that Indenture dated as of March 5, 1992 (the "Indenture")
between Unifi, Inc. (the "Company") and First Union National Bank
of North Carolina (the "Trustee"), pursuant to which the Company
issued $230,000,000 aggregate principal amount of its 6%
Convertible Subordinated Notes due 2002 (the "Notes").
2. The Trustee has received from the Company an amount
sufficient to pay and discharge the entire indebtedness under the
Indenture and the Notes upon the redemption of the Notes by the
Company on Monday, April 22, 1996 and will pay such sums in
accordance with the terms of the Notes and the Indenture to the
persons entitled thereto.
3. In accordance with Article Four of the Indenture, the
Indenture has been satisfied and discharged and ceases to be of
further effect as of the date hereof, except as otherwise set
forth in Section 401 of the Indenture. In connection therewith,
the Trustee hereby acknowledges receipt of the Officer's
Certificate and the Opinion of Counsel required to be delivered
to the Trustee pursuant to Section 401(3) of the Indenture.
This the 25th day of April, 1996.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, Trustee
By: SHANNON STAHEL
Title: Trust Officer
CREDIT AGREEMENT
Dated as of April 15, 1996
among
UNIFI, INC.
as Borrower,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK, N.A.
as Agent
TABLE OF CONTENTS
Page No.
SECTION 1
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . 1
1.2 Computation of Time Periods. . . . . . . . . . 16
1.3 Accounting Terms . . . . . . . . . . . . . . . 16
SECTION 2
THE CREDIT FACILITIES . . . . . . . . . . . . . . . . 17
2.1 Revolving Loans. . . . . . . . . . . . . . . . 17
2.2 Competitive Bid Loan Subfacility . . . . . . . 18
2.3 Default Rate . . . . . . . . . . . . . . . . . 21
2.4 Extension and Conversion . . . . . . . . . . . 22
2.5 Reductions in Commitments and Prepayments. . . 22
2.6 Facility Fee . . . . . . . . . . . . . . . . . 23
2.7 Capital Adequacy . . . . . . . . . . . . . . . 24
2.8 Inability To Determine Interest Rate . . . . . 24
2.9 Illegality . . . . . . . . . . . . . . . . . . 24
2.10 Requirements of Law. . . . . . . . . . . . . . 25
2.11 Taxes. . . . . . . . . . . . . . . . . . . . . 26
2.12 Indemnity. . . . . . . . . . . . . . . . . . . 29
2.13 Pro Rata Treatment . . . . . . . . . . . . . . 29
2.14 Sharing of Payments. . . . . . . . . . . . . . 30
2.15 Place and Manner of Payments . . . . . . . . . 31
2.16 Replacement of Lenders . . . . . . . . . . . . 32
SECTION 3
CONDITIONS. . . . . . . . . . . . . . . . . . . . . . 32
3.1 Closing Conditions . . . . . . . . . . . . . . 32
3.2 Each Loan Advance. . . . . . . . . . . . . . . 33
SECTION 4
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . 34
4.1 Financial Statements . . . . . . . . . . . . . 34
4.2 Corporate Status . . . . . . . . . . . . . . . 35
4.3 Corporate Authorization. . . . . . . . . . . . 35
4.4 No Conflicts . . . . . . . . . . . . . . . . . 35
4.5 Liens. . . . . . . . . . . . . . . . . . . . . 35
4.6 Litigation . . . . . . . . . . . . . . . . . . 35
4.7 Governmental and Other Approvals . . . . . . . 35
4.8 Use of Loans . . . . . . . . . . . . . . . . . 36
4.9 Taxes. . . . . . . . . . . . . . . . . . . . . 36
4.10 Compliance with Law. . . . . . . . . . . . . . 36
4.11 ERISA. . . . . . . . . . . . . . . . . . . . . 36
4.12 Hazardous Substances . . . . . . . . . . . . . 37
SECTION 5
COVENANTS . . . . . . . . . . . . . . . . . . . . . . 38
5.1 Financial Statements . . . . . . . . . . . . . 38
5.2 Certificates; Other Information. . . . . . . . 39
5.3 Payment of Obligations . . . . . . . . . . . . 39
5.4 Conduct of Business and Maintenance of Existence39
5.5 Insurance. . . . . . . . . . . . . . . . . . . 40
5.6 Inspection of Property; Books and Records;
Discussions. . . . . . . . . . . . . . . . . . 40
5.7 Notices. . . . . . . . . . . . . . . . . . . . 40
5.8 Environmental Laws . . . . . . . . . . . . . . 40
5.9 Financial Covenants. . . . . . . . . . . . . . 41
5.10 Funded Debt. . . . . . . . . . . . . . . . . . 41
5.11 Liens. . . . . . . . . . . . . . . . . . . . . 42
5.12 Mergers and Consolidations . . . . . . . . . . 42
SECTION 6
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 43
6.1. Events of Default. . . . . . . . . . . . . . . 43
6.2. Rights and Remedies. . . . . . . . . . . . . . 45
SECTION 7
AGENCY PROVISIONS . . . . . . . . . . . . . . . . . . 46
7.1 Appointment. . . . . . . . . . . . . . . . . . 46
7.2 Delegation of Duties . . . . . . . . . . . . . 46
7.3 Exculpatory Provisions . . . . . . . . . . . . 47
7.4 Reliance on Communications . . . . . . . . . . 47
7.5 Notice of Default. . . . . . . . . . . . . . . 48
7.6 Non-Reliance on Agent and Other Lenders. . . . 48
7.7 Indemnification. . . . . . . . . . . . . . . . 48
7.8 Agent in its Individual Capacity . . . . . . . 49
7.9 Successor Agent. . . . . . . . . . . . . . . . 49
SECTION 8
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 50
8.1 Notices. . . . . . . . . . . . . . . . . . . . 50
8.2 Benefit of Agreement . . . . . . . . . . . . . 51
8.3 No Waiver; Remedies Cumulative . . . . . . . . 52
8.4 Payment of Expenses, etc . . . . . . . . . . . 53
8.5 Amendments, Waivers and Consents . . . . . . . 54
8.6 Counterparts . . . . . . . . . . . . . . . . . 54
8.7 Headings . . . . . . . . . . . . . . . . . . . 54
8.8 Survival . . . . . . . . . . . . . . . . . . . 54
8.9 Governing Law; Submission to Jurisdiction; Venue54
8.10 Severability . . . . . . . . . . . . . . . . . 55
8.11 Entirety . . . . . . . . . . . . . . . . . . . 55
8.12 Survival . . . . . . . . . . . . . . . . . . . 55
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of April 15, 1996 (the
"Credit Agreement"), is by and among UNIFI, INC., a New York
corporation (the "Borrower"), the several lenders identified on
the signature pages hereto and such other lenders as may from
time to time become a party hereto (the "Lenders") and
NATIONSBANK, N.A., as agent for the Lenders (in such capacity,
the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide
a $400,000,000 5-year revolving credit facility under this Credit
Agreement for the purpose of financing the redemption of certain
convertible subordinated notes of the Borrower and for other
general corporate purposes; and
WHEREAS, the Lenders have agreed to make the requested
credit facility available to the Borrower on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
1.1 Definitions. As used in this Credit Agreement, the
following terms shall have the meanings specified below unless
the context otherwise requires:
"Agent" means NationsBank, N.A. and any successors and
assigns in such capacity.
"Applicable Percentage" means, for any day, the rate
per annum set forth below opposite the applicable pricing
level then in effect as shown below, it being understood
that the Applicable Percentage for (i) Base Rate Loans shall
be the percentage set forth under the column "Base Rate
Loans", (ii) Eurodollar Loans shall be the percentage set
forth under the column "Eurodollar Loans", and (iii) the
Facility Fee shall be the percentage set forth under the
column "Facility Fee":
Pricing Leverage Base Rate Eurodollar Facility
Level Ratio Loans Loans Fee
I <1.0 to 1.0 0.00% 0.185% 0.090%
II > or =
1.0 to 1.0 0.00% 0.225% 0.100%
but <1.5:1.0
III > or =
1.5:1.0 but 0.00% 0.265% 0.110%
<2.5:1.0
IV > or =
2.5:1.0 but 0.00% 0.300% 0.125%
<3.0:1.0
V > or =
3.0:1.0 0.00% 0.350% 0.150%
The Applicable Percentage shall, in each case, be determined
and adjusted quarterly by the Agent as soon as practicable
(but in any event within 5 days) after delivery of the
annual financial information required by Section 5.1(a) or
the quarterly financial information required by Section
5.1(b), provided that the date of determination and
adjustment shall not be later than the date 5 days after the
date by which the Borrower is required to provide such
quarterly financial information in accordance with Section
5.1(b) (each an "Interest Determination Date") based on the
information contained in such quarterly financial
information. Such Applicable Percentage shall be effective
from such Interest Determination Date until the next such
Interest Determination Date. The Agent shall determine the
appropriate Pricing Level promptly upon its receipt of the
quarterly financial information and promptly notify the
Borrower and the Lenders of any change thereof. Such
determinations by the Agent shall be conclusive absent
manifest error. The initial Applicable Percentages shall be
based on Pricing Level I until the first Interest
Determination Date occurring after the Closing Date.
"Bankruptcy Code" means the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded
or replaced from time to time.
"Base CD Rate" means a per annum interest rate (rounded
upwards, if necessary, to the next 1/16 of 1%) determined
pursuant to the following formula:
CD
Base CD Rate = Three Month Secondary CD Rate + Assessment
1 - CD Reserve Percentage Rate
"Base Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest whole
multiple of 1/100 of 1%) equal to the greater of (a) the
Federal Funds Rate in effect on such day plus 1/2 of 1%, (b)
the Base CD Rate in effect on such day plus 1/2 of 1%, or
(c)
the Prime Rate in effect on such day. If for any reason the
Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after
due inquiry to ascertain the Federal Funds Rate or the Base
CD Rate for any reason, including the inability or failure
of the Agent to obtain sufficient quotations in accordance
with the terms hereof, the Base Rate shall be determined
without regard to clause (a) or (b), as applicable, of the
first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate, the Base
CD Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a
rate determined by reference to the Base Rate.
"Borrower" means Unifi, Inc., a New York corporation,
as identified as such in the heading hereof, together with
any successors and permitted assigns.
"Business Day" means a day other than a Saturday,
Sunday or other day on which commercial banks in Charlotte,
North Carolina and New York, New York are authorized or
required by law to close, except that, when used in
connection with a Eurodollar Loan, such day shall also be a
day on which dealings between banks are carried on in U.S.
dollar deposits in London, England, Charlotte, North
Carolina and New York, New York.
"Capital Expenditures" means all expenditures which in
accordance with GAAP would be classified as capital
expenditures, including Capital Lease Obligations.
"Capital Lease" means any lease of property, real or
personal, the obligations with respect to which are required
to be capitalized on a balance sheet of the lessee in
accordance with GAAP.
"Capital Lease Obligations" means the capital lease
obligations relating to a Capital Lease determined in
accordance with GAAP.
"CD Assessment Rate" means, for any day, the net annual
assessment rate (rounded upward to the nearest 1/100th of
1%) determined by NationsBank to be payable on such day to
the Federal Deposit Insurance Corporation or any successor
("FDIC") for FDIC's insuring time deposits made in Dollars
at the offices of NationsBank in the United States.
"CD 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 Charlotte, North Carolina with
deposits exceeding one billion Dollars in respect of non-
personal time deposits in Dollars in Charlotte, North
Carolina having a maturity of three months in an amount of
$100,000 or more.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as
amended, and any successor thereto, as interpreted by the
rules and regulations issued thereunder, in each case as in
effect from time to time. References to sections of the
Code shall be construed also to refer to any successor
sections.
"Commitment" means, as to each Lender, the commitment
of such Lender to make its Commitment Percentage of
Committed Loans up to its Committed Amount.
"Commitment Percentage" means, for each Lender, a
fraction (expressed as a percentage) the numerator of which
is the Committed Amount of such Lender at such time and the
denominator of which is the Total Committed Amount, provided
that if the Commitment Percentage of any Lender is to be
determined after the Commitments have been terminated, then
the Commitment Percentage of such Lender shall be determined
immediately prior (and without giving effect) to such
termination.
"Committed Amount" means, as to each Lender, the
maximum amount of such Lender's Commitment as identified on
Schedule 2.1(a).
"Committed Loans" means such term as defined in Section
2.1.
"Committed Note" or "Committed Notes" means the
promissory notes of the Borrower in favor of each of the
Lenders evidencing the Committed Loans provided pursuant to
Section 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from
time to time.
"Competitive Bid" means an offer by a Lender to make a
Competitive Bid Loan pursuant to the terms of Section 2.2.
"Competitive Bid Lenders" means, at any time, those
Lenders which have Competitive Bid Loans outstanding.
"Competitive Bid Loan" means a loan made by a Lender in
its discretion pursuant to the provisions of Section 2.2.
"Competitive Bid Note" or "Competitive Bid Notes" means
the promissory notes of the Borrower in favor of each of the
Lenders evidencing the Competitive Bid Loans, if any,
provided pursuant to Section 2.2(i), individually or
collectively, as appropriate, as such promissory notes may
be amended, modified, supplemented, extended, renewed or
replaced from time to time.
"Competitive Bid Rate" means, as to any Competitive Bid
made by a Lender in accordance with the provisions of
Section 2.2, the fixed rate of interest offered by the
Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the
Borrower for Competitive Bids in accordance with the
provisions of Section 2.2.
"Consolidated Capital Expenditures" means Capital
Expenditures for the Borrower and its Subsidiaries on a
consolidated basis.
"Consolidated EBITDA" means, for any period, the sum of
Consolidated Net Income plus Consolidated Interest Expense
plus all provisions for any Federal, state or other income
taxes plus depreciation, amortization and other non-cash
charges, for the Borrower and its Subsidiaries on a
consolidated basis as determined in accordance with GAAP
applied on a consistent basis. Except as otherwise
specified, the applicable period shall be for the four
consecutive quarters ending as of the date of determination.
"Consolidated Funded Debt" means Funded Debt of the
Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent
basis.
"Consolidated Interest Expense" means, for any period,
all interest expense, including the amortization of debt
discount and premium and the interest component under
Capital Leases for the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP
applied on a consistent basis. Except as otherwise
specified, the applicable period shall be for the four
consecutive quarters ending as of the date of computation.
"Consolidated Net Income" means, for any period, the
net income of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP
applied on a consistent basis. Except as otherwise
specified, the applicable period shall be for the four
consecutive quarters ending as of the date of computation.
"Consolidated Net Worth" means total stockholders'
equity for the Borrower and its Subsidiaries on a
consolidated basis as determined at a particular date in
accordance with GAAP applied on a consistent basis.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is
a party or by which it or any of its property is bound.
"Credit Agreement" means this Credit Agreement.
"Credit Documents" means this Credit Agreement and the
Notes.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event
of Default.
"Defaulting Lender" means, at any time, any Lender
that, at such time (a) has failed to make a Loan required
pursuant to the term of this Credit Agreement (b) has failed
to pay to the Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement or (c)
has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of
the United States of America.
"Environmental Laws" means any and all lawful and
applicable Federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to
the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute thereto,
as interpreted by the rules and regulations thereunder, all
as the same may be in effect from time to time. References
to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with the
Borrower or any of its Subsidiaries within the meaning of
Section 4001(a)(14) of ERISA, or is a member of a group
which includes the Borrower and which is treated as a single
employer under Sections 414(b), (c), (m), or (o) of the
Code.
"Eurodollar Loan" means any Loan bearing interest at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing
(including conversions, extensions and renewals), a per
annum interest rate determined pursuant to the following
formula:
Eurodollar Rate = LIBOR Rate
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from
time to time under Regulation D of the Board of Governors of
the Federal Reserve System (or any successor), as such
regulation may be amended from time to time or any successor
regulation, as the maximum reserve requirement for the Agent
(including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with
respect to Eurocurrency liabilities as that term is defined
in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined). The
Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Eurodollar Reserve
Percentage. The Agent will promptly notify the Borrower of
any change in the Eurodollar Reserve Percentage of which it
becomes aware.
"Event of Default" means such term as defined in
Section 6.1.
"Facility Fee" means such term as defined in Section
2.6.
"Federal Funds Rate" means, for any day, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest whole multiple of 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (A) if such day is not a
Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding
Business Day and (B) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Agent on
such day on such transactions as determined by the Agent.
"Funded Debt" means, for any Person, (i) all
Indebtedness of such Person for borrowed money (including
without limitation, indebtedness evidenced by promissory
notes, bonds, debentures and similar instruments and further
any portion of the purchase price for assets or acquisitions
permitted hereunder which may be financed by the seller and
Guaranty Obligations by such Person of Funded Debt of other
Persons), (ii) all purchase money Indebtedness of such
Person, (iii) the principal portion of Capital Lease
Obligations, (iv) the maximum amount available to be drawn
under standby letters of credit and bankers' acceptances
issued or created for the account of such Person, (v) all
preferred stock issued by such Person and required by the
terms thereto to be redeemed, or for which mandatory sinking
fund payments are due, by a fixed date, (vi) the aggregate
amount of Indebtedness and other obligations owing on or in
respect of uncollected accounts receivable of such Person
subject at such time to a sale of receivables (or other
similar transaction but excluding factoring arrangements of
the type engaged in by the Borrower as of the Closing Date)
regardless of whether such transaction is effected without
recourse to such Person or in a manner which would not be
reflected on the balance sheet of such Person in accordance
with GAAP (including Permitted Receivables Financings) and
(vii) all obligations of such Person under synthetic leases
or other off-balance sheet financing arrangements. Funded
Debt shall include payments in respect of Funded Debt which
constitute current liabilities of the obligor under GAAP.
"GAAP" means generally accepted accounting principles
in the United States applied on a consistent basis and
subject to Section 1.3 hereof.
"Governmental Authority" means any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guaranty Obligations" means, with respect to any
Person, without duplication, any obligations of such Person
(other than endorsements in the ordinary course of business
of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect,
and including without limitation any obligation, whether or
not contingent, (i) to purchase any such Indebtedness or any
property constituting security therefor, (ii) to advance or
provide funds or other support for the payment or purchase
of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other
Person (including without limitation keep well agreements,
maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or
purchase property, securities or services primarily for the
purpose of assuring the holder of such Indebtedness, or (iv)
to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of
any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect
of which such Guaranty Obligation is made.
"Indebtedness" means, of any Person at any date, (a)
all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other
than current trade liabilities incurred in the ordinary
course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which
is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Capital
Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such
Person, (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has
not assumed or otherwise become liable for the payment
thereof, (f) all obligations of such Person under
conditional sale or other title retention agreements
relating to property purchased by such Person (other than
customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary
course of business), (g) all obligations of such Person
under take-or-pay or similar arrangements or under
commodities agreements, (h) all Guaranty Obligations of such
Person, (i) all obligations of such Person in respect of
interest rate protection agreements, foreign currency
exchange agreements, commodity purchase or option agreements
or other interest or exchange rate or commodity price
hedging agreements, (j) the maximum amount of all letters of
credit issued or bankers' acceptances created for the
account of such Person and, without duplication, all drafts
drawn thereunder (to the extent not theretofore reimbursed),
(k) all preferred stock issued by such Person and required
by the terms thereto to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, (l) all
other obligations which would be shown as a liability on the
balance sheet of such Person (m) the aggregate amount of
indebtedness or obligations owing on or in respect of
uncollected accounts receivable of such Person subject at
such time to a sale of receivables (or other similar
transaction but excluding factoring arrangements of the type
engaged in by the Borrower as of the Closing Date)
regardless of whether such transaction is effected without
recourse to such Person or in a manner which would not be
reflected on the balance sheet of such Person in accordance
with GAAP and (n) all obligations of such Person under
synthetic leases or other off-balance sheet financing
arrangements; but specifically excluding from the foregoing
trade payables and other expenses and reserves (whether
classified as long term or short term) arising or incurred
in the ordinary course of business. For purposes hereof,
Indebtedness shall include Indebtedness of any partnership
in which such Person is a general partner (except for any
such Indebtedness with respect to which the holder is
limited to the assets of such partnership or joint venture).
"Interest Coverage Ratio" means the ratio of (i)
Consolidated EBITDA minus Consolidated Capital Expenditures
for the applicable period, to (ii) Consolidated Interest
Expense. Except as otherwise specified, the applicable
period shall be for the four consecutive quarters ending as
of the date of computation.
"Interest Payment Date" means (i) as to any Base Rate
Loan, the last day of each March, June, September and
December and the Termination Date, (ii) as to any Eurodollar
Loan or any Competitive Bid Loan, the last day of each
Interest Period for such Loan and on the Termination Date,
and in addition where the applicable Interest Period is more
than 3 months, then also on the date 3 months from the
beginning of the Interest Period, and each 3 months
thereafter. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date
shall be deemed to be the next succeeding Business Day,
except that in the case of Eurodollar Loans where the next
succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
"Interest Period" means (i) with respect to any
Eurodollar Loan, a period of one, two, three or six months
duration, as the Borrower may elect, commencing in each case
on the date of the borrowing (including extensions and
conversions) and (ii) with respect to any Competitive Bid
Loan, a period beginning on the date of borrowing and ending
on the date specified in the respective Competitive Bid
whereby the offer to make such Competitive Bid Loan was
extended, which, except with regards to any Accommodating
Competitive Bid Loan, shall be not less than 7 days nor more
than 180 days' duration; provided, however, (A) if any
Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day (except that in the case of
Eurodollar Loans where the next succeeding Business Day
falls in the next succeeding calendar month, then on the
next preceding Business Day), (B) no Interest Period shall
extend beyond the Termination Date, and (C) in the case of
Eurodollar Loans, where an Interest Period begins on a day
for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such
Interest Period shall, subject to clause (A) above, end on
the last Business Day of such calendar month.
"Lenders" means each of the Persons identified as a
"Lender" on the signature pages hereto, and each Person
which may become a Lender by way of assignment in accordance
with the terms hereof, together with their successors and
permitted assigns.
"Leverage Ratio" means the ratio of Consolidated Funded
Debt to Consolidated EBITDA.
"LIBOR Rate" means, for any Interest Period, the
interest rate per annum equal to the offered rate for
deposits in United States dollars (rounded to four decimal
places) in amounts comparable to the principal amount of,
and for a length of time comparable to the Interest Period
for, the Eurodollar Loan to be made by the Lenders, which
interest rate appears on the Telerate Page 3750 as of 11:00
a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period; provided, however, that (i) if
more than one such offered rate appears on Telerate Page
3750, the LIBOR Rate shall be the arithmetic average
(rounded to four decimal places) of such offered rates, or
(ii) if no such offered rate appears on such page, the LIBOR
Rate shall be the interest rate per annum (rounded to four
decimal places) at which United States dollar deposits are
offered to NationsBank in the London interbank borrowing
market at approximately 11:00 a.m. (Charlotte, North
Carolina time) on the date two (2) Business Days prior to
the first day of such Interest Period in an amount
comparable to the principal amount of, and for a length of
time comparable to the Interest Period for, the Eurodollar
Loan to be made by the Lenders.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar
statement or notice filed under the Uniform Commercial Code
as adopted and in effect in the relevant jurisdiction or
other similar recording or notice statute, and any lease in
the nature thereof).
"Loan" or "Loans" means a Committed Loan and/or a
Competitive Bid Loan, as appropriate.
"Material Adverse Effect" means a material adverse
effect on (i) the condition (financial or otherwise),
operations, business, assets, liabilities or prospects of
the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform any material obligation
under the Credit Documents or (iii) the material rights and
remedies of the Lenders under the Credit Documents.
"Multiemployer Plan" means a Plan which is a
multiemployer plan as defined in Sections 3(37) or
4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the
Borrower, any of its Subsidiaries or any ERISA Affiliate and
at least one employer other than the Borrower, its
Subsidiaries or any ERISA Affiliate are contributing
sponsors.
"NationsBank" means NationsBank, N.A. and its
successors.
"Non-Excluded Taxes" means such term as defined in
Section 2.11(a).
"Note" or "Notes" means the Committed Notes and/or the
Competitive Bid Notes, collectively, separately or
individually, as appropriate.
"Notice of Borrowing" means the written notice of
borrowing as referenced and defined in Section 2.1(b)(i).
"Notice of Extension/Conversion" means the written
notice of extension or conversion of a Loan in accordance
with Section 2.4, a form of which is attached as Schedule
2.4.
"Obligations" means, with respect to any or all of the
Lenders, the unpaid principal of, and the accrued and unpaid
interest on, the Loans, all accrued and unpaid Commitment
Fees and all other unsatisfied obligations of the Borrower
arising under any of the Credit Documents, including without
limitation under Sections 2.10, 2.11 and 2.12.
"Participation Interest" means the purchase by a Lender
of a participation in Committed Loans as provided in Section
2.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and
any successor thereof.
"Permitted Liens" means
(a) Liens created by or otherwise existing, under or
in connection with this Credit Agreement or the other Credit
Documents in favor of the Lenders;
(b) Liens in favor of a Lender hereunder as the
provider of interest rate protection relating to the Loans
hereunder, but only (i) to the extent such Liens secure
obligations under such interest rate protection agreements
permitted under Section 5.10, (ii) to the extent such Liens
are on the same collateral as to which the Lenders also have
a Lien and (iii) if such provider and the Lenders shall
share pari passu in the collateral subject to such Liens;
(c) Liens securing Indebtedness (and refinancings
thereof) to the extent permitted under Section 5.10(c);
(d) Liens securing Permitted Receivables Financings to
the extent permitted under Section 5.10;
(e) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of
grace (not to exceed 60 days), if any, related thereto has
not expired or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;
(f) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business which are not overdue for a
period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(g) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social
security legislation and deposits securing liability to
insurance carriers under insurance or self-insurance
arrangements;
(h) deposits to secure the performance of bids, trade
contracts, (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business;
(i) any extension, renewal or replacement (or
successive extensions, renewals or replacements) , in whole
or in part, of any Lien referred to in the foregoing
clauses; provided that such extension, renewal or
replacement Lien shall be limited to all or a part of the
property which secured the Lien so extended, renewed or
replaced (plus improvements on such property);
(j) easements, rights of way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not material in amount
and which do not in any case materially detract from the
value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the
Borrower or any Subsidiary;
(k) leases and subleases otherwise permitted hereunder
granted to others not interfering in any material respect in
the business of the Borrower or any Subsidiary; and
(l) attachment or judgment Liens, where the attachment
or judgment which gave rise to such Liens does not
constitute an Event of Default hereunder.
"Permitted Receivables Financing" means any one or more
receivables financings (including factoring arrangements,
securitizations and similar structured finance transactions)
involving the sale by the Borrower or any of its
Subsidiaries of accounts or other receivables, whether or
not pursuant to true sales transactions (as determined in
accordance with GAAP).
"Person" means any individual, partnership, joint
venture, firm, corporation, limited liability company,
association, trust or other enterprise (whether or not
incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with
respect to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA
be deemed to be) an "employer" within the meaning of Section
3(5) of ERISA.
"Prime Rate" means the per annum rate of interest
established from time to time by the Agent at its principal
office in Charlotte, North Carolina as its Prime Rate. Any
change in the interest rate resulting from a change in the
Prime Rate shall become effective as of 12:01 a.m. of the
Business Day on which each change in the Prime Rate is
announced by the Agent. The Prime Rate is a reference rate
used by the Agent in determining interest rates on certain
loans and is not intended to be the lowest rate of interest
charged on any extension of credit to any debtor.
"Replaced Lender" means such term as defined in Section
2.16.
"Replacement Lender" means such term as defined in
Section 2.16.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to
which the post-event notice requirement is waived under
subsections .13, .14, .18, .19, or .20 of PBGC Reg. Section
2615.
"Required Lenders" means, at any time, two or more
Lenders having collectively at least fifty-one percent (51%)
of the Commitments or, if the Commitments have been
terminated, two or more Lenders holding collectively at
least fifty-one percent (51%) of the aggregate unpaid
principal amount of the Notes; provided that the Commitments
of, or unpaid principal amount of Notes owing to, a
Defaulting Lender shall be excluded for purposes hereof in
making a determination of Required Lenders.
"Requirement of Law" means, as to any Person, the
certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any
of its material property.
"Responsible Officer" means the President, Executive
Vice President, Chief Financial Officer, Treasurer or
Assistant Treasurer of the Borrower.
"Single Employer Plan" means any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer Plan.
"Subject Property" means such term as defined in
Section 4.12.
"Subsidiary" means, as to any Person, (a) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, limited liability
company, association, joint venture or other entity in which
such person directly or indirectly through Subsidiaries has
more than 50% equity interest at any time. Unless otherwise
specified, any reference to a Subsidiary is intended as a
reference to a Subsidiary of the Borrower.
"Termination Date" means, with respect to any Lender at
any time, the earlier of (i) the day five (5) years after
the date of this Credit Agreement and (ii) the day on which
the Commitments shall have been reduced to zero and
terminated in whole pursuant to the terms hereof.
"Termination Event" means (i) with respect to any Plan,
the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section
4062(e) of ERISA); (ii) the withdrawal of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent
to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (v) any event
or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan; or (vi) the complete or
partial withdrawal of the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate from a Multiemployer Plan.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of
deposit reported as being in effect for such day (or, if
such day shall not be a Business Day, the immediately
preceding Business Day) by the Board of Governors of the
Federal Reserve System (the "Board") through the public
information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of
the Board of Governors of the Federal Reserve System, be
published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall
not be so reported on such day or such immediately preceding
Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money
center banks received at approximately 10:00 A.M., Charlotte
North Carolina time, on such day, (or, if such day shall not
be a Business Day, on the immediately preceding Business
Day) by the Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
"Total Committed Amount" means the aggregate Committed
Amounts of all the Lenders, being initially $400,000,000.
"U.S. Tax Compliance Certificate" means such term as
defined in Section 2.11(b)(Y).
1.2 Computation of Time Periods. For purposes of computa-
tion of periods of time hereunder, the word "from" means "from
and including" and the words "to" and "until" each mean "to but
excluding."
1.3 Accounting Terms. Except as otherwise expressly
provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the
Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. All calculations made for the
purposes of determining compliance with this Credit Agreement
shall (except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most
recent annual or quarterly financial statements delivered
pursuant to Section 5.1 hereof (or, prior to the delivery of the
first financial statements pursuant to Section 5.1 hereof,
consistent with the financial statements as at December 24, 1995
referenced in Section 4.1); provided, however, if (a) the
Borrower shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to
any change in GAAP or the rules promulgated with respect thereto
or (b) the Agent or the Required Lenders shall so object in
writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by
the Borrower to the Lenders as to which no such objection shall
have been made.
SECTION 2
THE CREDIT FACILITIES
2.1 Revolving Loans.
(a) Commitment. Subject to the terms and conditions
of this Credit Agreement, each Lender severally agrees to
make revolving loans ("Committed Loans") to the Borrower
from time to time during the period from the date hereof to
the Termination Date in an aggregate principal amount not to
exceed such Lender's Commitment at any time in effect;
provided, however, that (A) with regard to each Lender
individually, such Lender's Committed Loans shall not exceed
its Committed Amount and (B) with regard to the Lenders
collectively, the aggregate amount of Committed Loans plus
the aggregate amount of Competitive Bid Loans shall not
exceed the Total Committed Amount. Committed Loans may
consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and may be
repaid and reborrowed in accordance with the provisions
hereof; provided, however that no more than six (6)
Eurodollar Loans shall be outstanding hereunder at any time.
(b) Committed Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall
request a Committed Loan borrowing by written notice (or
telephone notice promptly confirmed in writing) to the Agent
not later than 11:00 A.M. (Charlotte, North Carolina time)
on the Business Day of the requested borrowing in the case
of Base Rate Loans, and on the second Business Day prior to
the date of the requested borrowing in the case of
Eurodollar Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Committed Loan is
requested, (B) the date of the requested borrowing (which
shall be a Business Day), (C) the aggregate principal amount
to be borrowed, and (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. A form of Notice of
Borrowing (a "Notice of Borrowing") is attached as Schedule
2.1(b)(i). If the Borrower shall fail to specify in any
such Notice of Borrowing (I) an applicable Interest Period
in the case of a Eurodollar Loan, then such notice shall be
deemed to be a request for an Interest Period of one month,
or (II) the type of Committed Loan requested, then such
notice shall be deemed to be a request for a Base Rate Loan
hereunder. The Agent shall give notice to each Lender
promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Lender's share thereof.
(ii) Minimum Amounts. Each Committed Loan
borrowing shall be in a minimum aggregate amount of
$2,500,000 and integral multiples of $1,000,000, in the case
of Eurodollar Loans and $500,000 in the case of Base Rate
Loans, in excess thereof (or the remaining amount of the
Total Committed Amount, if less).
(iii) Advances. Each Lender will make its
Commitment Percentage of each Committed Loan borrowing
available to the Agent for the account of the Borrower at
the office of the Agent specified in Schedule 2.1(a), or at
such other office as the Agent may designate in writing, by
1:00 P.M. (Charlotte, North Carolina time) on the date
specified in the applicable Notice of Borrowing in Dollars
and in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by the
Agent by crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as
received by the Agent.
(c) Repayment. The principal amount of all Committed
Loans shall be due and payable in full on the Termination
Date.
(d) Interest. Subject to the provisions of Section
2.3, Committed Loans shall bear interest at a per annum rate
equal to:
(i) Base Rate Loans. During such periods as
Committed Loans shall be comprised of Base Rate Loans,
the sum of the Base Rate plus the Applicable
Percentage; and
(ii) Eurodollar Loans. During such periods as
Committed Loans shall be comprised of Eurodollar Loans,
the sum of the Eurodollar Rate plus the Applicable
Percentage.
Interest on Committed Loans shall be payable in arrears on
each Interest Payment Date.
(e) Committed Notes. The Committed Loans made by each
Lender shall be evidenced by a duly executed promissory note
of the Borrower to each Lender substantially in the form of
Schedule 2.1(e).
2.2 Competitive Bid Loan Subfacility.
(a) Competitive Bid Loans. Subject to the terms and
conditions of this Credit Agreement, the Borrower may, from
time to time during the period from the date hereof to the
Termination Date, request and each Lender may, in its sole
discretion, agree to make, Competitive Bid Loans to the
Borrower; provided that the sum of the aggregate amount of
Competitive Bid Loans plus the aggregate amount of Committed
Loans shall not exceed the Total Committed Amount. Each
Competitive Bid Loan shall be in a minimum aggregate
principal amount of $2,500,000 and multiples of $1,000,000
in excess thereof.
(b) Competitive Bid Requests. The Borrower may
solicit Competitive Bids by delivery of a Competitive Bid
Request substantially in the form of Schedule 2.2(b)-1 to
the Agent by 12:00 Noon (Charlotte, North Carolina time) on
the second Business Day prior to the date of the requested
Competitive Bid Loan borrowing in the case of all other
Competitive Bid Requests; provided however that in no event
may a Competitive Bid Request be submitted more than four
(4) Business Days prior to the date of a requested
Competitive Bid Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Bid
Loan borrowing (which shall be a Business Day), (ii) the
amount of the requested Competitive Bid Loan borrowing and
(iii) the applicable Interest Periods requested. The Agent
shall, promptly following its receipt of a Competitive Bid
Request notify the Lenders of its receipt and the contents
thereof. A form of such notice is provided in Schedule
2.2(b)-2. No more than three (3) Competitive Bid Requests
shall be submitted at any one time (e.g., the Borrower may
request Competitive Bids for no more than three (3)
different Interest Periods at a time) and Competitive Bid
Requests may be made no more frequently than once every five
(5) Business Days. The Borrower shall make payment to the
Agent of a fee in the amount of $3,500 concurrently with
delivery of any Competitive Bid Request (whether or not any
Competitive Bid is offered by a Lender, accepted by the
Borrower or extended by the offering Lender pursuant
thereto).
(c) Competitive Bid Procedure. Each Lender may, in
its sole discretion, make one or more Competitive Bids to
the Borrower in response to a Competitive Bid Request. Each
Competitive Bid must be received by the Agent not later than
10:00 A.M. (Charlotte, North Carolina time) on the Business
Day next succeeding the date of receipt by such Lender of
the related Competitive Bid Request. A Lender may offer to
make all or part of the requested Competitive Bid Loan
borrowing and may submit multiple Competitive Bids in
response to a Competitive Bid Request. The Competitive Bid
shall specify (i) the particular Competitive Bid Request as
to which the Competitive Bid is submitted, (ii) the minimum
(which shall be not less than $1,000,000 and integral
multiples thereof) and maximum principal amounts of the
requested Competitive Bid Loan or Loans as to which the
Lender is willing to make, and (iii) the applicable interest
rate or rates and Interest Period or Periods therefor. A
form of such Competitive Bid is provided in Schedule 2.2(c).
A Competitive Bid submitted by a Lender in accordance with
the provisions hereof shall be irrevocable. The Agent shall
promptly notify the Borrower of all Competitive Bids made
and the terms thereof and shall send a copy of each of the
Competitive Bids to the Borrower for its records as soon as
practicable.
(d) Submission of Competitive Bids by Agent. If the
Agent, in its capacity as a Lender, elects to submit a
Competitive Bid in response to the related Competitive Bid
Request, it shall submit such Competitive Bid directly to
the Borrower one-half of an hour earlier than the latest
time at which the other Lenders are required to submit their
Competitive Bids to the Agent in response to such
Competitive Bid Request pursuant to the terms of subsection
(c) above.
(e) Acceptance of Competitive Bids. The Borrower may,
in its sole and absolute discretion, subject only to the
provisions of this subsection (e), accept or reject any
Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give written notification (or telephone
notice promptly confirmed in writing) substantially in the
form of Schedule 2.2(e) of its acceptance of any or all such
Competitive Bids. Such notification must be received by the
Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the date on which notice of election to make a
Competitive Bid is to be given by the Lenders pursuant to
the terms of subsection (c) above; provided, however, (i)
the failure by the Borrower to give timely notice of its
acceptance of a Competitive Bid shall be deemed to be a
rejection thereof, (ii) the Borrower may accept Competitive
Bids only in ascending order of rates, (iii) the aggregate
amount of Competitive Bids accepted by the Borrower shall
not exceed the principal amount specified in the Competitive
Bid Request, (iv) the Borrower may accept a portion of a
Competitive Bid in the event, and to the extent, acceptance
of the entire amount thereof would cause the Borrower to
exceed the principal amount specified in the related
Competitive Bid Request, subject however to the minimum
amounts provided herein (and provided that where two or more
Lenders submit a Competitive Bid at the same Competitive Bid
Rate, then the Borrower shall accept portions of the
Competitive Bids of such Lenders on a pro rata basis based
upon the amount of the Competitive Bids of such Lenders) and
(v) no bid shall be accepted for a Competitive Bid Loan
unless such Competitive Bid Loan is in a minimum principal
amount of $1,000,000 and integral multiples thereof, except
that where a portion of a Competitive Bid is accepted in
accordance with the provisions of subsection (iv) hereof,
then in a minimum principal amount of $100,000 and integral
multiples thereof (but not in any event less than the
minimum amount specified in the Competitive Bid), and in
calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid
Rate pursuant to subsection (iv) hereof, the amounts shall
be rounded to integral multiples of $100,000 in a manner
which shall be in the discretion of the Borrower. A notice
of acceptance of a Competitive Bid given by the Borrower in
accordance with the provisions hereof shall be irrevocable.
The Agent shall, not later than 12:00 Noon (Charlotte, North
Carolina time) on the date of receipt by the Agent of a
notification from the Borrower of its acceptance and/or
rejection of Competitive Bids, notify each Lender of its
receipt and the contents thereof. Upon its receipt from the
Agent of notification of the Borrower's acceptance of its
Competitive Bid(s) in accordance with the terms of this
subsection (e), each successful bidding Lender will
thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Bid Loan in
respect of which its bid has been accepted.
(f) Funding of Competitive Bid Loans. Each Lender
which is to make a Competitive Bid Loan shall make its
Competitive Bid Loan borrowing available to the Agent for
the account of the Borrower (in Dollars and in funds
immediately available to the Agent) at the office of the
Agent specified in Schedule 2.1(a), or at such other office
as the Agent may designate in writing, by 1:30 P.M.
(Charlotte, North Carolina time) on the date specified in
the Competitive Bid Request. Such borrowing will then be
made available to the Borrower by crediting the account of
the Borrower on the books of such office with the aggregate
of the amount made available to the Agent by the applicable
Competitive Bid Lenders and in like funds as received by the
Agent.
(g) Maturity of Competitive Bid Loans. Each
Competitive Bid Loan shall mature and be due and payable in
full on the last day of the Interest Period applicable
thereto. Unless the Borrower shall give notice to the Agent
otherwise, the Borrower shall be deemed to have requested a
Committed Revolving Loan borrowing in the amount of the
maturing Competitive Bid Loan, the proceeds of which will be
used to repay such Competitive Bid Loan.
(h) Interest on Competitive Bid Loans. Subject to the
provisions of Section 2.3, Competitive Bid Loans shall bear
interest for the benefit of the applicable Competitive Bid
Lender in each case at the Competitive Bid Rate applicable
thereto. Interest on Competitive Bid Loans shall be payable
in arrears on each Interest Payment Date.
(i) Competitive Bid Loan Notes. The Competitive Bid
Loans shall be evidenced by a duly executed promissory note
of the Borrower to each Lender in an original principal
amount equal to the Total Committed Amount and substantially
in the form of Schedule 2.2(i).
2.3 Default Rate. Overdue principal and, to the extent
permitted by law, overdue interest in respect of each Loan and
any other overdue amount payable hereunder or under the other
Credit Documents hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2%
greater than the rate which would otherwise be applicable (or if
no rate is applicable, whether in respect of interest, fees or
other amounts, then 2% greater than the Base Rate).
2.4 Extension and Conversion. The Borrower shall have the
option, on any Business Day prior to the Termination Date, to
extend existing Loans into a subsequent permissible Interest
Period or to convert Loans into Loans of another type; provided,
however, that (i) except as provided in Section 2.9, Eurodollar
Loans may be converted into Base Rate Loans only on the last day
of the Interest Period applicable thereto, (ii) Eurodollar Loans
may be extended, and Base Rate Loans may be converted into
Eurodollar Loans, only if no Default or Event of Default is in
existence on the date of extension or conversion, (iii) Loans
extended as, or converted into, Eurodollar Loans shall be subject
to the terms of the definition of "Interest Period" set forth in
Section 1.1 and shall be in such minimum amounts as provided in
Section 2.1(b)(ii), and (iv) any request for extension or
conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest
Period of one month. Each such extension or conversion shall be
effected by the Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in
writing) to the Agent prior to 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Base Rate Loan, and on the
second Business Day prior to, in the case of the extension of a
Eurodollar Loan as, or conversion of a Base Rate Loan into, a
Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or
conversion, the Loans to be so extended or converted, the types
of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect
thereto. Each request for extension or conversion shall
constitute a representation and warranty by the Borrower of the
matters specified in subsections (b), (c) and (d) of Section 3.2.
In the event the Borrower fails to request extension of or
conversion into any Eurodollar Loan in accordance with this
Section, or any such conversion or extension is not permitted or
required by this Section, then such Loans shall be automatically
converted into Base Rate Loans at the end of their Interest
Period. The Agent shall give each Lender notice as promptly as
practicable of any such proposed extension or conversion
affecting any Loan.
2.5 Reductions in Commitments and Prepayments.
(a) Termination of Commitments Generally. The
Borrower may at any time, upon not less than five (5)
Business Days' written notice to the Agent, terminate the
Commitments, in whole or in part; provided that (i) the
Commitments shall not be terminated to an amount less than
the sum of the aggregate amount of Competitive Bid Loans
plus the aggregate amount of Committed Loans and (ii)
partial terminations shall be in a minimum principal amount
of $10,000,000 and multiples of $1,000,000 in excess
thereof. Partial terminations in the Commitments will serve
to reduce each of the Lenders' respective Committed Amount
ratably in accordance with the provisions of Section
2.13(a). Terminations of the Commitments, in whole or in
part, pursuant to this subsection (a) are permanent and may
not be reinstated.
(b) Voluntary Prepayments. The Borrower may prepay
the Loans, in whole or in part; provided that (i) Committed
Loans which are Eurodollar Loans and Competitive Bid Loans
may be prepaid only with three (3) Business Days' prior
written notice (or telephone notice promptly confirmed in
writing) to the Agent and any such prepayment of Committed
Loans which are Eurodollar Loans and Competitive Bid Loans
shall be accompanied by any amounts owing under Section 2.12
on account thereof, and (ii) partial prepayments shall be in
a minimum principal amount of $2,500,000 and multiples of
$1,000,000 in excess thereof. Amounts paid under this
subsection (b) shall be applied as the Borrower may direct,
or if the Borrower shall fail to make any such direction,
first to Committed Loans which are Base Rate Loans, second
to Committed Loans which are Eurodollar Loans in direct
order of Interest Period maturities and third to Competitive
Bid Loans in direct order of Interest Period maturities.
Amounts paid under this subsection (b) may be reborrowed in
accordance with the provisions of this Credit Agreement. A
form of Notice of Voluntary Prepayment is provided as
Schedule 2.5(b).
(c) Mandatory Prepayments. If at any time the sum of
the aggregate amount of Competitive Bid Loans plus the
aggregate amount of Committed Loans shall exceed the Total
Committed Amount, the Borrower shall immediately make
payment on the Loans in an amount sufficient to eliminate
the deficiency. Amounts paid under this subsection (c)
shall be applied as the Borrower may direct, or if the
Borrower shall fail to make any such direction, first to
Committed Loans which are Base Rate Loans, second to
Committed Loans which are Eurodollar Loans in direct order
of Interest Period maturities and third to Competitive Bid
Loans in direct order of Interest Period maturities.
(d) Notice. In the case of voluntary prepayments
under subsection (b) hereof, the Borrower will give notice
to the Agent of its intent to make such a prepayment by
11:00 A.M. (Charlotte, North Carolina time) three (3)
Business Days', in the case of Committed Loans which are
Eurodollar Loans and Competitive Bid Loans, and one (1)
Business Day prior, in all other cases, prior to the date of
prepayment.
2.6 Facility Fee. In consideration of the Commitments by
the Lenders hereunder, the Borrower agrees to pay to the Agent
for the ratable benefit of the Lenders a facility fee (the
"Facility Fee") equal to the Applicable Percentage per annum on
the Total Committed Amount in effect from time to time for the
applicable period. The Facility Fee shall accrue from the date
hereof and shall be payable quarterly in arrears on the last day
of each calendar quarter.
2.7 Capital Adequacy. If, after the date hereof, any
Lender has determined that the adoption or effectiveness of any
applicable law, rule or regulation regarding capital adequacy, or
any change therein, 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, or compliance by such Lender with any
request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on such Lender's capital or assets as a
consequence of its commitments or obligations hereunder (after
taking into account any resulting increase in the Eurodollar Rate
due to any increase in the Eurodollar Reserve Percentage) to a
level below that which such Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital
adequacy), then, upon notice from such Lender, the Borrower shall
pay to such Lender, without duplication, such additional amount
or amounts as will compensate such Lender for such reduction.
Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding
on the parties hereto.
2.8 Inability To Determine Interest Rate. If prior to the
first day of any Interest Period, the Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, the
Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If
such notice is given (i) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as
Base Rate Loans, (ii) any Loans that were to have been converted
on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate
Loans and (iii) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Agent, no
further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Base Rate Loans to
Eurodollar Loans.
2.9 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof occurring
after the Closing Date shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Credit
Agreement, (a) such Lender shall promptly give written notice of
such circumstances to the Borrower and the Agent (which notice
shall be withdrawn whenever such circumstances no longer exist),
(b) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans shall forthwith be canceled and, until
such time as it shall no longer be unlawful for such Lender to
make or maintain Eurodollar Loans, such Lender shall then have a
commitment only to make a Base Rate Loan when a Eurodollar Loan
is requested and (c) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days or the then current
Interest Periods with respect to such Loans or within such
earlier period as required by law. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 2.12.
2.10 Requirements of Law. If the adoption of or any change
in any Requirement of Law or in the interpretation or application
thereof applicable to any Lender, or compliance by any Lender
with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in
each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to or any Eurodollar Loans made by
it or its obligation to make Eurodollar Loans, or change the
basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by subsection
2.11 (including Non-Excluded Taxes imposed solely by reason
of any failure of such Lender to comply with its obligations
under subsection 2.11(b)) and changes in taxes measured by
or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or
its applicable lending office, branch, or any affiliate
thereof);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the
cost to such Lender, by an amount which such Lender deems to
be material, of making, converting into, continuing or
maintaining Eurodollar Loans or to reduce any amount
receivable hereunder in respect thereof, then, in any such
case, upon notice to the Borrower from such Lender, through
the Agent, in accordance herewith, the Borrower shall
promptly pay such Lender, upon its demand and without
duplication, any additional amounts necessary to compensate
such Lender for such increased cost or reduced amount
receivable, provided that (i) in any such case, the Borrower
may elect to convert the Eurodollar Loans made by such
Lender hereunder to Base Rate Loans by giving the Agent at
least one Business Day's notice of such election, in which
case the Borrower shall promptly pay to such Lender, upon
demand, without duplication, such amounts, if any, as may be
required pursuant to Section 2.12 and (ii) no such amounts
shall be payable in excess of the amounts that such Lender
could have realized had all outstanding Loans been funded at
the Prime Rate. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall
provide prompt notice thereof to the Borrower, through the
Agent, certifying (x) that one of the events described in
this paragraph (a) has occurred and describing in reasonable
detail the nature of such event, (y) as to the increased
cost or reduced amount resulting from such event and (z) as
to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof.
Such a certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender,
through the Agent, to the Borrower shall be conclusive in
the absence of manifest error. This covenant shall survive
the termination of this Credit Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.11 Taxes.
(a) Except as provided below in this subsection, all
payments made by the Borrower under this Credit Agreement
and the Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed
by Governmental Authority, excluding (i) taxes measured by
or imposed upon the overall net income of any Lender or its
applicable lending office, or any branch or affiliate
thereof, and all franchise taxes, branch taxes, taxes on
doing business or taxes on the overall capital or net worth
of any Lender or its applicable lending office, or any
branch or affiliate thereof, in each case imposed in lieu of
net income taxes, or (ii) any taxes arising after the
Closing Date solely as a result of or attributable to a
Lender changing any applicable lending office after the date
that such Lender becomes a party hereto, imposed: (i) by the
jurisdiction under the laws of which such Lender, applicable
lending office, branch or affiliate is organized or is
located, or in which its principal executive office is
located, or any nation within which such jurisdiction is
located or any political subdivision thereof; or (ii) by
reason of any connection between the jurisdiction imposing
such tax and such Lender, applicable lending office, branch
or affiliate other than a connection arising solely from
such Lender having executed, delivered or performed its
obligations, or received payment under or enforced, this
Credit Agreement or the Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Agent or any Lender
hereunder, (A) the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield
to the Agent or such Lender (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Credit Agreement, provided, however, that a Borrower shall
be entitled to deduct and withhold any Non-Excluded Taxes
and shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws
of the United States of America or a state thereof if such
Lender fails to comply with the requirements of paragraph
(b) of this subsection whenever any Non-Excluded Taxes are
payable by such Borrower, and (B) as promptly as possible
thereafter such Borrower shall send to the Agent for its own
account or for the account of such Lender, as the case may
be, a certified copy of an original official receipt
received by such Borrower showing payment thereof. If a
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent
the required receipts or other required documentary
evidence, such Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties
that may become payable by the Agent or any Lender as a
result of any such failure. The agreements in this
subsection shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof
shall:
(X)(i) on or before the date of any payment by
the Borrower under this Credit Agreement or Notes to
such Lender, deliver to the Borrower and the Agent (A)
two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it
is entitled to receive payments under this Credit
Agreement and any Notes without deduction or
withholding of any United States federal income taxes
and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be,
certifying that it is entitled to an exemption from
United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two
further copies of any such form or certification on or
before the date that any such form or certification
expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may
reasonably be requested by the Borrower or the Agent;
or
(Y) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Code, (i) represent to the Borrower (for the benefit of the
Borrower and the Agent) that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Code, (ii) agree to
furnish to the Borrower on or before the date of any payment
by the Borrower, with a copy to the Agent (A) a certificate
substantially in the form of Schedule 2.11 hereto (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two
accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Credit Agreement
and any Notes (and to deliver to the Borrower and the Agent
two further copies of such form on or before the date it
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form
and, if necessary, obtain any extensions of time reasonably
requested by the Borrower or the Agent for filing and
completing such forms), and (iii) agree, to the extent
legally entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower (for the benefit of the
Borrower and the Agent) such other forms as may be
reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding
with respect to payments under this Credit Agreement and any
Notes;
unless in any such case any change in treaty, law or
regulation has occurred after the date such Person becomes a
Lender hereunder which renders all such forms inapplicable
or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender
so advises the Borrower and the Agent. Each Person that
shall become a Lender or a Participant pursuant to
subsection 8.2 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms,
certifications and statements required pursuant to this
subsection, provided that in the case of a Participant the
obligations of such Participant pursuant to this subsection
(b) shall be determined as if the Participant were a Lender
except that such Participant shall furnish all such required
forms, certifications and statements to the Lender from
which the related participation shall have been purchased.
2.12 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur (other than through such
Lender's gross negligence or willful misconduct) as a consequence
of (a) default by the Borrower in making a borrowing of a
Eurodollar Loan or a Competitive Bid Loan, conversion into a
Eurodollar Loan or a Competitive Bid Loan, or continuation of
Eurodollar Loans after the Borrower has given a notice requesting
the same in accordance with the provisions of this Credit
Agreement, (b) default by the Borrower in making any prepayment
of a Eurodollar Loan or a Competitive Bid Loan after the Borrower
has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a prepayment of a
Eurodollar Loan or a Competitive Bid Loan on a day which is not
the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the
applicable rate of interest for such Eurodollar Loans or
Competitive Bid Loans, as appropriate (excluding in the case of
Eurodollar Loans, however, the margin in excess of the Eurodollar
Rate included therein, if any) over (ii) the amount of interest
(as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
2.13 Pro Rata Treatment. Except to the extent otherwise
provided herein:
(a) Committed Loans. Each Committed Loan borrowing,
each payment or prepayment of principal of any Committed
Loan and each payment of interest on the Committed Loans,
each reduction of the Committed Amount, and each conversion
or continuation of any Loan, shall be allocated among the
relevant Lenders in accordance with the respective
applicable Commitment Percentages (or, if the Commitments of
such Lenders have expired or been terminated, in accordance
with the respective principal amounts of their outstanding
Committed Loans of such Lenders); and
(b) Advances. Unless the Agent shall have been
notified in writing by any Lender prior to a Committed Loan
borrowing that such Lender will not make the amount that
would constitute its Commitment Percentage of such borrowing
available to the Agent, the Agent may assume that such
Lender is making such amount available to the Agent, and the
Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If such amount is
not made available to the Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Agent,
on demand, such amount with interest thereon at a rate equal
to the Base Rate for the period until such Lender makes such
amount immediately available to the Agent. A certificate of
the Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in
the absence of manifest error. If such Lender's Commitment
Percentage of such Committed Loan borrowing is not made
available to the Agent by such Lender within two Business
Days of such Borrowing Date, the Agent shall notify the
Borrower of the failure of such Lender to make such amount
available to the Agent and the Agent shall also be entitled
to recover such amount with interest thereon at the rate per
annum applicable to Base Rate Loans hereunder, on demand,
from the Borrower.
2.14 Sharing of Payments. The Lenders agree among
themselves that, in the event that any Lender shall obtain
payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a
right of setoff, banker's lien or counterclaim, or pursuant to a
secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment
as provided for in this Credit Agreement, such Lender shall
promptly purchase from the other Lenders a participation in such
Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their
respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if
payment to a Lender obtained by such Lender through the exercise
of a right of setoff, banker's lien, counterclaim or other event
as aforesaid shall be rescinded or must otherwise be restored,
each Lender which shall have shared the benefit of such payment
shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose
payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Lender so purchasing such a
participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien
or counterclaim, with respect to such participation as fully as
if such Lender were a holder of such Loan or other obligation in
the amount of such participation. Except as otherwise expressly
provided in this Credit Agreement, if any Lender or the Agent
shall fail to remit to the Agent or any other Lender an amount
payable by such Lender or the Agent to the Agent or such other
Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the
date such amount is paid to the Agent or such other Lender at a
rate per annum equal to the Base Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 2.14
applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 2.14
to share in the benefits of any recovery on such secured claim.
2.15 Place and Manner of Payments. Except as otherwise
specifically provided herein, all payments hereunder shall be
made to the Agent in dollars in immediately available funds,
without offset, deduction, counterclaim or withholding of any
kind, at its offices specified in Schedule 2.1(a) not later than
2:00 P.M. (Charlotte, North Carolina time) on the date when due.
Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Agent may (but
shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of
the Borrower maintained with the Agent (with notice to the
Borrower). The Borrower shall, at the time it makes any payment
under this Credit Agreement, specify to the Agent the Loans, fees
or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the
terms hereof, the Agent shall distribute such payment to the
Lenders in such manner as the Agent may determine to be
appropriate in respect of obligations owing by the Borrower
hereunder, subject to the terms of Section 2.5(c)). The Agent
will distribute such payments to such Lenders, if any such
payment is received prior to 12:00 Noon (Charlotte, North
Carolina time) on a Business Day in like funds as received prior
to the end of such Business Day and otherwise the Agent will
distribute such payment to such Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to
be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to
accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension
would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next
preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and fees shall be made on
the basis of actual number of days elapsed over a year of 360
days, except with respect to computation of interest on Base Rate
Loans which shall be calculated based on a year of 365 or 366
days, as appropriate. Interest shall accrue from and include the
date of borrowing, but exclude the date of payment.
2.16 Replacement of Lenders. If any Lender delivers a
notice to the Borrower pursuant to Sections 2.7, 2.9, 2.10 or
2.11, then the Borrower shall have the right, if no Default or
Event of Default then exists, to replace such Lender (the
"Replaced Lender") with one or more additional banks or financial
institutions (collectively, the "Replacement Lender"), provided
that (A) at the time of any replacement pursuant to this Section
2.16, the Replacement Lender shall enter into one or more
assignment agreements substantially in the form of Schedule
8.2(b) pursuant to, and in accordance with the terms of, Section
8.2(b) (and with all fees payable pursuant to said Section 8.2(b)
to be paid by the Replacement Lender) pursuant to which the
Replacement Lender shall acquire all of the rights and
obligations of the Replaced Lender hereunder and, in connection
therewith, shall pay to the Replaced Lender in respect thereof an
amount equal to the sum of (a) the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, and
(b) all accrued, but theretofore unpaid, fees owing to the
Replaced Lender pursuant to Section 2.6, and (B) all obligations
of the Borrower owing to the Replaced Lender (including all
obligations, if any, owing pursuant to Section 2.7, 2.10 or 2.11,
but excluding those obligations specifically described in clause
(A) above in respect of which the assignment purchase price has
been, or is concurrently being paid) shall be paid in full to
such Replaced Lender concurrently with such replacement.
SECTION 3
CONDITIONS
3.1 Closing Conditions. The obligation of the Lenders to
enter into this Credit Agreement and make the initial Loans is
subject to satisfaction of the following conditions (in form and
substance acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the Agent
of duly executed copies of this Credit Agreement and the
Notes.
(b) No Default; Representations and Warranties. As of
the Closing Date (i) there shall exist no Default or Event
of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be
true and correct in all material respects.
(c) Opinion of Counsel. Receipt by the Agent of an
opinion, or opinions, satisfactory to the Agent, addressed
to the Agent and the Lenders and dated as of the Closing
Date, from legal counsel to the Borrower.
(d) Corporate Documents. Receipt by the Agent of the
following:
(i) Charter Documents. Copies of the
articles or certificates of incorporation or other
charter documents of the Borrower certified to be true
and complete as of a recent date by the appropriate
Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a
secretary or assistant secretary of the Borrower to be
true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the
Borrower certified by a secretary or assistant
secretary of the Borrower to be true and correct as of
the Closing Date.
(iii) Resolutions. Copies of resolutions of
the Board of Directors of the Borrower approving and
adopting the Credit Documents, the transactions
contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant
secretary of the Borrower to be true and correct and in
force and effect as of the Closing Date.
(iv) Good Standing. Copies of (a)
certificates of good standing, existence or its
equivalent with respect to the Borrower certified as of
a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of
incorporation and each other jurisdiction in which the
failure to so qualify and be in good standing would
have a Material Adverse Effect on the business or
operations of the Borrower in such jurisdiction and (b)
to the extent available, a certificate indicating
payment of all corporate franchise taxes certified as
of a recent date by the appropriate governmental taxing
authorities.
(e) Material Adverse Change. Since December 24, 1995,
there shall not have occurred, nor otherwise exist, an event
or condition which has a Material Adverse Effect on the
Borrower.
(f) Other. Receipt by the Agent of such other
documents, agreements or information which may be reasonably
requested by the Lenders.
3.2 Each Loan Advance. The obligation of each Lender to
make any Loan advance, including the conversion to or extension
of any Eurodollar Loan, is subject to satisfaction of the
following conditions:
(a) (i) In the case of any Committed Loan, the Agent
shall have received an appropriate Notice of Borrowing or
Notice of Extension/Conversion; and (ii) in the case of any
Competitive Bid Loan, the applicable Competitive Bid Lender
shall have received an appropriate notice of acceptance of
its related Competitive Bid;
(b) The representations and warranties set forth in
Section 4 shall be true and correct on and as of the date of
the making of such Loan with the same force and effect as if
made on and as of such date (or, if any such representation
or warranty is expressly stated to have been made as of a
specific date, as of such specific date);
(c) There shall not have been commenced against the
Borrower an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Borrower
or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action
shall remain undismissed, undischarged or unbonded; and
(d) No Default or Event of Default shall exist and
be continuing either prior to or after giving effect
thereto.
The delivery of each Notice of Borrowing and each Notice of
Extension/Conversion relating to an extension of or conversion
into Eurodollar Loans and each request for a Competitive Bid
pursuant to a Competitive Bid Request shall constitute a
representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b), (c) and (d) above.
SECTION 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the
Lenders as follows:
4.1 Financial Statements. The Borrower has furnished to
the Lenders copies of (i) the consolidated balance sheet of the
Borrower and its Subsidiaries as at June 25, 1995 and the related
consolidated statements of income, cash flows and shareholders'
equity for the fiscal year then ended and (ii) the consolidated
balance sheet of the Borrower and its Subsidiaries as at December
24, 1995 and the related consolidated statements of income, cash
flows and shareholders equity for the period then ended. Such
financial statements, including the related schedules and notes,
are complete and correct in all material respects and fairly
present the consolidated financial condition of the Borrower and
its Subsidiaries at such dates and the results of their
operations for such periods, all in accordance with GAAP applied
on a consistent basis (except as otherwise stated therein or in
the notes thereto throughout the periods involved).
4.2 Corporate Status. The Borrower is a corporation duly
incorporated and organized and validly existing in good standing
in its jurisdiction of incorporation, is duly qualified and in
good standing as a foreign corporation and authorized to do
business in all other jurisdictions wherein the nature of its
business or property makes such qualification necessary, except
where its failure so to qualify would not have a Material Adverse
Effect, and has full power to own its real properties and its
personal properties and to carry on its business as now
conducted.
4.3 Corporate Authorization. The execution, delivery and
performance of this Credit Agreement and of the Notes are within
the powers and authority of the Borrower and have been duly
authorized by proper corporate proceedings. This Credit
Agreement and Notes have been duly executed and delivered by the
Borrower and constitute the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance
with their respective terms.
4.4 No Conflicts. Neither the execution and delivery of
the Credit Agreement and Notes, nor the consummation of the
transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by the Borrower
will (a) violate or conflict with any provision of its articles
of incorporation or bylaws, (b) violate, contravene or conflict
with any law, regulation (including, without limitation,
Regulation U or Regulation X), order, writ, judgment, injunction,
decree or permit applicable to it, (c) violate, contravene or
conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of
trust, contract or other agreement or instrument to which it is a
party or by which it may be bound, the violation of which could
have or might be reasonably expected to have a Material Adverse
Effect, or (d) result in or require the creation of any Lien upon
or with respect to its properties.
4.5 Liens. The Borrower has no outstanding Liens other
than Permitted Liens.
4.6 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of the Borrower, threatened
against or affecting the Borrower or any Subsidiary in any court
or arbitration or before or by any governmental department,
agency or instrumentality, domestic or foreign, which reasonably
would be expected to have a Material Adverse Effect; and neither
the Borrower nor any Subsidiary is in violation of any judgment,
order, writ, injunction, decree or award or in violation of any
rule or regulation of any court or binding arbitration or
governmental department, agency or instrumentality, domestic or
foreign, the violation of which would have a Material Adverse
Effect.
4.7 Governmental and Other Approvals. No approval, consent
or authorization of, or any other action by, or filing or
registration with, any governmental department, agency or
instrumentality, domestic or foreign, is necessary for the
execution or delivery by the Borrower of this Credit Agreement,
the Notes or for the performance by the Borrower of any of the
terms or conditions hereof or thereof.
4.8 Use of Loans. The proceeds of the Loans will be used
for (i) financing redemption of $230,000,000 6% Convertible
Subordinated Notes due March 25, 2002 and the call premium
thereon and (ii) general corporate purposes; provided that no
part of the proceeds of any Loan hereunder will be used for the
purpose of purchasing or carrying Margin Stock or to extend
credit to others for such purpose, in violation of Regulation U
or Regulation X issued by the Board of Governors of the Federal
Reserve System or Section 7 of the Securities Exchange Act of
1934, as amended.
4.9 Taxes. The Borrower has filed, or caused to be filed,
all tax returns (federal, state, local and foreign) required to
be filed and paid all amounts of taxes shown thereon to be due
(including interest and penalties) and has paid all other taxes,
fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (a) which are not yet
delinquent, (b) that are being contested in good faith and by
proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP or (c) which are promptly
filed or paid upon notice to the Borrower of the existence
thereof.
4.10 Compliance with Law. Each of the Borrower and its
Subsidiaries is in compliance with all laws, rules, regulations,
orders and decrees (including without limitation Environmental
Laws) applicable to it, or to its properties, unless such failure
to comply would not have or be reasonably expected to have a
Material Adverse Effect.
4.11 ERISA. Except as would not result in a Material
Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination
Event has occurred, and, to the best of the Borrower's or any
ERISA Affiliate's knowledge, no event or condition has occurred
or exists as a result of which any Termination Event could
reasonably be expected to occur, with respect to any Plan; (ii)
no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Single
Employer Plan and, to the best of the Borrower's or any ERISA
Affiliate's knowledge, each Multiemployer Plan has been
maintained, operated, and funded in compliance with its own terms
and in material compliance with the provisions of ERISA, the
Code, and any other applicable federal or state laws; and (iv) no
lien in favor or the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" under each Single Employer Plan (determined within
the meaning of Section 401(a)(2) of the Code, utilizing the
actuarial assumptions used to fund such Plans), whether or not
vested, did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made,
exceed the current value of the assets of such Plan allocable to
such accrued liabilities.
(c) None of the Borrower, its Subsidiaries or any ERISA
Affiliate has incurred, or, to the best of the Borrower's
knowledge, are reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. None of the Borrower, its Subsidiaries or any
ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of
Section 4241 of ERISA), is insolvent (within the meaning of
Section 4245 of ERISA), or has been terminated (within the
meaning of Title IV of ERISA), and no Multiemployer Plan is, to
the best of the Borrower's knowledge, reasonably expected to be
in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan
which has subjected or may subject the Borrower, any of its
Subsidiaries or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to
which the Borrower, any of its Subsidiaries or any ERISA
Affiliate has agreed or is required to indemnify any person
against any such liability.
4.12 Hazardous Substances. Except as would not reasonably
be expected to have a Material Adverse Effect, (i) the real
property owned or leased by the Borrower and its Subsidiaries or
on which the Borrower or any of its Subsidiaries operates (the
"Subject Property") is free from "hazardous substances" as
defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as
amended,
and the regulations promulgated thereunder, (ii) no portion of
the Subject Property is subject to federal, state or local
regulation or liability because of the presence of stored, leaked
or spilled petroleum products, hazardous wastes, "PCB's" or PCB
items (as defined in 40 C.F.R. Section 763.3), underground
storage
tanks, "asbestos" (as defined in 40 C.F.R. Section 763.63) or the
past
or present accumulation, spillage or leakage of any such sub-
stance, (iii) the Borrower and each of its Subsidiaries is in
compliance in all material respects with all federal, state and
local requirements relating to protection of health or the
environment in connection with the operation of their businesses,
and (iv) the Borrower does not know of any complaint or
investigation regarding real property which it or any of its
Subsidiaries owns or leases or on which it or any of its
Subsidiaries operates.
SECTION 5
COVENANTS
So long as any of the Commitments are in effect and, in any
event, until payment in full and discharge of all Obligations to
the Agent and the Lenders, including payment of all principal and
interest on the Loans, the Borrower shall comply, and shall cause
each Subsidiary, to the extent applicable, to comply, with the
following covenants:
5.1 Financial Statements. Furnish to the Agent (with
sufficient copies for each of the Lenders):
(a) Annual Financial Statements. As soon as
available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such fiscal year and the
related consolidated statements of earnings and of cash
flows of the Borrower and its consolidated Subsidiaries for
such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was
inadequate to permit such independent certified public
accountants to certify such financial statements without
such qualification, by Ernst & Young, LLP or other firm of
independent certified public accountants of nationally
recognized standing; and
(b) Quarterly Financial Statements. As soon as
available and in any event within 45 days after the end of
each of the first three fiscal quarters of the Borrower, a
consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such period and
related statements of earnings and of cash flows for the
Borrower and its consolidated Subsidiaries for such
quarterly period and for the portion of the fiscal year
ending with such period, in each case setting forth in
comparative form consolidated figures for the corresponding
period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments), all in
reasonable form and detail acceptable to the Agent and the
Required Lenders;
all such financial statements to be prepared in reasonable detail
in accordance with GAAP applied consistently throughout the
periods reflected therein.
5.2 Certificates; Other Information. Furnish to the Agent
(with sufficient copies for each of the Lenders):
(a) concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) above,
a certificate of a Responsible Officer stating that, to the
best of such Responsible Officer's knowledge, the Borrower
during such period observed or performed in all material
respects all of its covenants and other agreements, and
satisfied in all material respects every material condition,
contained in this Credit Agreement to be observed, performed
or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default
except as specified in such certificate and such certificate
shall include the calculations required to indicate
compliance with Section 5.9;
(b) within thirty days after the same are sent, copies
of all reports (other than those otherwise provided pursuant
to subsection 5.1 and those which are of a promotional
nature) and other financial information which the Borrower
sends to its stockholders, and within thirty days after the
same are filed, copies of all financial statements and non-
confidential reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(c) promptly, such additional financial and other
information as the Agent, on behalf of any Lender, may from
time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent,
as the case may be, in accordance with industry practice
(subject, where applicable, to specified grace periods) all its
material obligations of whatever nature and any additional costs
that are imposed as a result of any failure to so pay, discharge
or otherwise satisfy such obligations, except when the amount or
validity of such obligations and costs is currently being
contested in good faith by appropriate proceedings and reserves,
if applicable, in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or its Subsidiaries,
as the case may be.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it on the date hereof and preserve, renew and keep
in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its
business; comply with all Contractual Obligations and
Requirements of Law applicable to it except to the extent that
failure to comply therewith would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.5 Insurance. The Borrower shall maintain insurance in
such amounts and covering such risks as is consistent with sound
business practice.
5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to
its businesses and activities; and permit, during regular
business hours and upon reasonable notice, the Agent to visit and
inspect any of its properties and examine and make abstracts from
any of its books and records (other than materials protected by
the attorney-client privilege and materials which the Borrower
may not disclose without violation of a confidentiality obliga-
tion binding upon it) at any reasonable time and as often as may
reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public
accountants.
5.7 Notices. Give notice to the Agent (which shall
promptly transmit such notice to each Lender) of:
(a) within five Business Days after the Borrower knows
thereof, the occurrence of any Default or Event of Default;
(b) promptly, any default or event of default under
any Contractual Obligation of the Borrower or any of its
Subsidiaries or the Borrower which would reasonably be
expected to have a Material Adverse Effect;
(c) promptly, any litigation, or any investigation or
proceeding known to the Borrower, affecting the Borrower or
any of its Subsidiaries or the Borrower which, if adversely
determined, would reasonably be expected to have a Material
Adverse Effect; and
(d) promptly, any other development or event which
would reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto.
5.8 Environmental Laws.
(a) Except to the extent that failure to do so would
not reasonably be expected to have a Material Adverse
Effect, comply in all material respects with, and ensure
compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws
and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain
and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other
actions required under Environmental Laws and promptly
comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings or
the pendency of such proceedings would not reasonably be
expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent, and
the Lenders, and their respective employees, agents,
officers and directors, from and against any and all claims,
demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known
or unknown, contingent or otherwise, arising out of, or in
any way resulting from the violation of, noncompliance with
or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or the
properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any
of the foregoing arise out of the negligence or willful
misconduct of the party seeking indemnification therefor.
The agreements in this paragraph shall survive repayment of
the Notes and all other amounts payable hereunder.
5.9 Financial Covenants.
(a) Consolidated Net Worth. There shall be maintained
at all times a Consolidated Net Worth of at least
$400,000,000; provided that the minimum Consolidated Net
Worth required hereunder shall be increased (but not
decreased) on the last day of each fiscal quarter by an
amount equal to 33% of Consolidated Net Income for the
fiscal quarter then ended.
(b) Interest Coverage Ratio. There shall be
maintained as of the end of each fiscal quarter an Interest
Coverage Ratio of at least 2.5:1.0.
(c) Leverage Ratio. There shall be maintained as of
the end of each fiscal quarter a Leverage Ratio of not
greater than 3.25:1.0.
5.10 Funded Debt. The Borrower will not, nor will it
permit any Subsidiary to, create, incur, assume or permit to
exist any Funded Debt, except for:
(a) Funded Debt arising or existing under this Credit
Agreement and evidenced by the Notes hereunder;
(b) Funded Debt existing as of the Closing Date and
disclosed in the financial statements referenced in Section
4.1 and in addition as set forth in Schedule 5.10;
(c) Funded Debt consisting of Capital Lease
Obligations or Indebtedness incurred or assumed to provide
all or a portion of the purchase price or cost of
construction of an asset provided that (i) such Indebtedness
when incurred shall not exceed the purchase or cost of
construction of such asset; (ii) no such Indebtedness shall
be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such
refinancing; and (iii) the total aggregate amount of all
such Indebtedness shall not exceed $50,000,000 at any time
outstanding;
(d) Funded Debt arising or existing in connection with
a Permitted Receivables Financing;
(e) other Funded Debt of the Borrower, provided that
after giving effect thereto and to the application of
proceeds therefrom, the Leverage Ratio will not be excess of
the level permitted by Section 5.9(c) hereof; and
(f) renewals, extensions and refundings of Funded Debt
permitted by this Section 5.10, provided that after giving
effect thereto and to the application of proceeds therefrom,
the Leverage Ratio will not be in excess of the level
permitted by Section 5.9(c) hereof.
5.11 Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, assume or permit to exist any Lien
with respect to any of its property or assets of any kind
(whether real or personal, tangible or intangible), whether now
owned or hereafter acquired, except for Permitted Liens.
5.12 Mergers and Consolidations. The Borrower shall (i)
not sell, lease or otherwise transfer all or substantially all of
its property, assets and business to any other entity, and (ii)
not merge or consolidate with or into, or acquire all or
substantially all of the assets of, any other entity without the
prior written consent of the Required Lenders unless (A) the cash
consideration paid or payable by the Borrower and/or its
Subsidiaries in connection therewith in a transaction or series
or related transactions is less than an amount equal to 20% of
the Borrower's Consolidated Net Worth, and (B) no Default or
Event of Default shall exist prior to or after giving effect
thereto.
SECTION 6
EVENTS OF DEFAULT
6.1. Events of Default. Each of the following occurrences
shall constitute an "Event of Default" under this Agreement:
(A) any representation or warranty made by the
Borrower to the Lenders in or in connection with this Credit
Agreement or any of the other Credit Documents shall prove
to have been false or misleading in any material respect
when made or furnished;
(B) the Borrower shall fail to pay
(i) any principal of any Note as and when the
same shall become due and payable, or
(ii) any interest on any Note, any Commitment Fee
or any other Obligation as and when the same shall
become due and payable, and such failure shall continue
unremedied for more than five days;
(C) the Borrower shall fail to pay when due, whether
by acceleration or otherwise, one or more evidences of
Indebtedness (other than the Notes hereunder) having an
aggregate unpaid balance of more than $10,000,000, and such
failure shall continue for more than the period of grace, if
any, applicable thereto and shall not have been waived;
(D) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Credit
Agreement or any other Credit Document on its part to be
performed or observed, and such failure shall continue
unremedied for a period of 30 days;
(E) the Borrower or any Subsidiary shall (i) apply for
or consent to the appointment of a receiver, custodian,
trustee or liquidator of the Borrower or such Subsidiary or
any of their respective properties or assets, (ii) generally
fail or admit in writing its inability to pay its debts as
they become due, (iii) make a general assignment for the
benefit of creditors, (iv) commence a voluntary case under
the Bankruptcy Code (as now or hereafter in effect), (v)
file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-
up or composition or readjustment of debts, (vi) fail to
controvert in a timely and appropriate manner, or acquiesce
in writing to, any petition filed against the Borrower or
such Subsidiary in an involuntary case under the Bankruptcy
Code or (vii) take any corporate action for the purpose of
effecting any of the foregoing;
(F) a proceeding or case shall be commenced, without
the application or consent of the Borrower or any
Subsidiary, in any court of competent jurisdiction seeking
(i) its liquidation, reorganization, dissolution or winding-
up or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian or liquidator
of the Borrower or such Subsidiary or of all or any
substantial part of its assets or (iii) similar relief in
respect of the Borrower or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-
up or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in
effect, for a period of 60 days; or an order for relief
against the Borrower or such Subsidiary shall be entered in
an involuntary case under the Bankruptcy Code;
(G) any of the following events or conditions, which
in the aggregate, reasonably could be expected to involve
possible taxes, penalties, and other liabilities in an
aggregate amount in excess of $10,000,000: (1) any
"accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any
lien shall arise on the assets of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate in favor
of the PBGC or a Plan; (2) a Termination Event shall occur
with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA;
(3) a Termination Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in
the reasonable opinion of the Agent, likely to result in (i)
the termination of such Plan for purposes of Title IV of
ERISA, or (ii) the Borrower, any Subsidiary of the Borrower
or any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency or (within
the meaning of Section 4245 of ERISA) such Plan; or (4) any
prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate has agreed
or is required to indemnify any person against any such
liability;
(H) any final judgment, final consent decree or final
order for the payment of money (or for the performance of
any remedial action or other services that would result in
the expenditure of funds by the Borrower or any of its
Subsidiaries) shall be rendered against the Borrower or any
of its Subsidiaries by any federal, state or local court or
administrative agency and the same shall fail to be
discharged, stayed or bonded for a period of 60 days after
such final judgment, final consent decree or final order for
the payment of money (or, in the case of performance
obligations, shall fail to be performed in the manner and at
the times required in such final judgment, final consent
decree or final order or shall fail to otherwise be
discharged, stayed or bonded, in any such case, for a period
of 60 days after the performance of such obligations is
required) provided that no occurrence described in this
subsection (H) shall constitute an Event of Default unless
the aggregate outstanding liability of the Borrower and its
Subsidiaries which has resulted from all such occurrences
shall exceed $10,000,000 (or its equivalent in any other
currency); or
(I) either (i) a "person" or a "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934) of more than 50% of the then outstanding voting stock
of the Borrower or (ii) a majority of the Board of Directors
of the Borrower shall consist of individuals who are not
Continuing Directors; "Continuing Director" means, as of any
date of determination, (i) an individual who on the date two
years prior to such determination date was a member of the
Borrower's Board of Directors and (ii) any new Director
whose nomination for election by the Borrower's shareholders
was approved by a vote of at least 75% of the Directors then
still in office who either were Directors on the date two
years prior to such determination date or whose nomination
for election was previously so approved.
6.2. Rights and Remedies. Upon the occurrence of an Event
of Default, and at any time thereafter unless and until such
Event of Default has been waived by the Required Lenders or cured
to the satisfaction of the Required Lenders (pursuant to the
voting procedures in Section 8.5), the Agent shall, upon the
request and direction of the Required Lenders, by written notice
to the Borrower take any of the following actions without
prejudice to the rights of the Agent or any Lender to enforce its
claims against the Borrower, except as otherwise specifically
provided for herein:
(i) Termination of Commitments. Declare the
Commitments terminated whereupon the Commitments shall
be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of
and any accrued interest in respect of all Loans and
any and all other amounts owing hereunder to any of the
Lenders to be due whereupon the same shall be
immediately due and payable without presentment,
demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all
rights and interests created and existing under this
Credit Agreement and the Notes and all rights of set-
off.
Notwithstanding the foregoing, in the case of an Event of
Default specified in subsection (E) or (F) relating to a Borrower
or a Subsidiary, the respective Commitment of each Lender shall
be immediately terminated and the Notes, including all interest
thereon, and all other Obligations shall be immediately due and
payable, without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived by the Borrower.
SECTION 7
AGENCY PROVISIONS
7.1 Appointment. Each Lender hereby designates and
appoints NationsBank, N.A. as administrative agent (in such
capacity as Agent hereunder, the "Agent") of such Lender to act
as specified herein and the other Credit Documents, and each such
Lender hereby authorizes the Agent, as the agent for such Lender,
to take such action on its behalf under the provisions of this
Credit Agreement and the other Credit Documents and to exercise
such powers and perform such duties as are expressly delegated by
the terms hereof and of the other Credit Documents, together with
such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein
and in the other Credit Documents, the Agent shall not have any
duties or responsibilities, except those expressly set forth
herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit
Agreement or any of the other Credit Documents, or shall
otherwise exist against the Agent. The provisions of this
Section are solely for the benefit of the Agent and the Lenders
and the Borrower shall not have any rights as a third party
beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other
Credit Documents, the Agent shall not act solely as agent of the
Lenders and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or
for the Borrower.
7.2 Delegation of Duties. The Agent may execute any of its
duties hereunder or under the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or
warranties made by the Borrower contained herein or in any of the
other Credit Documents or in any certificate, report, statement
or other document referred to or provided for in, or received by
the Agent under or in connection herewith or in connection with
the other Credit Documents, or enforceability or sufficiency
herefor of any of the other Credit Documents, or for any failure
of the Borrower to perform its obligations hereunder or
thereunder. The Agent shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Credit Agreement, or any of
the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made
by the Borrower in any written or oral statement or in any
financial or other statements, instruments, reports, certificates
or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf
of the Borrower to the Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books
or records of the Borrower.
7.4 Reliance on Communications. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower, independent accountants and
other experts selected by the Agent with reasonable care). The
Agent may deem and treat the Lenders as the owner of their
respective interests hereunder for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have
been filed with the Agent in accordance with Section 8.2(b)
hereof. The Agent shall be fully justified in failing or
refusing to take any action under this Credit Agreement or under
any of the other Credit Documents unless it shall first receive
such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder or under any
of the other Credit Documents in accordance with a request of the
Required Lenders (or to the extent specifically provided in
Section 8.5, all the Lenders) and such request and any action
taken or failure to act pursuant thereto shall be binding upon
all the Lenders (including their successors and assigns).
7.5 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Agent has received notice
from a Lender or the Borrower referring to the Credit Document,
describing 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, the Agent shall give prompt notice
thereof to the Lenders. The Agent shall take such action with
respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders.
7.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and
that no act by the Agent or any affiliate thereof hereinafter
taken, including any review of the affairs of the Borrower, shall
be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it
has, independently and without reliance upon the Agent or any
other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of
the Borrower and made its own decision to make its Loans
hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Credit Agreement, and to make
such investigation as it deems necessary to inform itself as to
the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder,
the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the
business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower which
may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
7.7 Indemnification. The Lenders agree to indemnify the
Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Commitments,
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment
of the Obligations) be imposed on, incurred by or asserted
against the Agent in its capacity as such in any way relating to
or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or
any action taken or omitted by the Agent under or in connection
with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting 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. The agreements in this Section shall survive the
payment of the Obligations and all other amounts payable
hereunder and under the other Credit Documents.
7.8 Agent in its Individual Capacity. The Agent and its
affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the
Agent were not Agent hereunder. With respect to the Loans made
and all Obligations owing to it, the Agent shall have the same
rights and powers under this Credit Agreement as any Lender and
may exercise the same as though they were not Agent, and the
terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
7.9 Successor Agent. The Agent may, at any time, resign
upon 20 days' written notice to the Lenders. Upon any such
resignation, the Required Lenders shall have the right to appoint
a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the notice of resignation, as
appropriate, then the retiring Agent shall select a successor
Agent provided such successor is a Lender hereunder or a
commercial bank organized under the laws of the United States of
America or of any State thereof and has a combined capital and
surplus of at least $400,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor, 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 as Agent, as appropriate, under this Credit Agreement
and the other Credit Documents and the provisions of this Section
7.9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Credit Agreement.
SECTION 8
MISCELLANEOUS
8.1 Notices. Except as otherwise expressly provided
herein, all notices and other communications shall have been duly
given and shall be effective (i) when delivered, (ii) when
transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which
the same has been delivered prepaid to a reputable national
overnight air courier service, or (iv) the third Business Day
following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective
parties at the address, in the case of the Borrower and the
Agent, set forth below, and in the case of the Lenders, set forth
on Schedule 2.1(a), or at such other address as such party may
specify by written notice to the other parties hereto:
if to the Borrower:
Unifi, Inc.
P.O. Box 19109
7201 W. Friendly Avenue
Greensboro, North Carolina 27410
Attn: Robert A. Ward
Telephone: (910) 316-5461
Telecopy: (910) 294-4751
with a copy to:
Frazier, Frazier & Mahler
Suite 206, Southeastern Building
102 N. Elm Street
P.O. Drawer 1559
Greensboro, North Carolina 27402
Attn: C. Clifford Frazier
Telephone: (910) 378-7781
Telecopy: (910) 274-7358
if to the Agent:
NationsBank, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Linda Ballard
Telephone: (704) 386-9368
Telecopy: (704) 386-9923
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
100 N. Tryon Street, 8th Floor
NC1-007-08-01
Charlotte, North Carolina 28255
Attn: Richard G. Parkhurst, Jr.
Telephone: (704) 386-1828
Telecopy: (704) 386-1270
8.2 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be
binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of
the parties hereto; provided that the Borrower may not
assign and transfer any of its interests without prior
written consent of the Lenders; provided further that
the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations
hereunder shall be limited as set forth in this Section
8.2, provided however that nothing herein shall prevent
or prohibit any Lender from (i) pledging its Loans
hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal
Reserve Bank, or (ii) granting assignments or
participation in such Lender's Loans and/or Commitments
hereunder to its parent company and/or to any affiliate
of such Lender.
(b) Assignments. Each Lender may, upon obtaining
the consent of the Borrower and the Agent (which
consent shall not be unreasonably withheld), assign all
or a portion of its rights and obligations hereunder
pursuant to an assignment agreement substantially in
the form of Schedule 8.2(b) to one or more additional
banks or financial institutions, provided that (i) no
such consent shall be required with respect to any
assignment by a Lender to an affiliate of such Lender
and no such consent shall be required from the Borrower
after the occurrence and during the continuation of any
Event of Default, and (ii) any such assignment shall be
in a minimum aggregate amount of $25,000,000 of the
Commitments and that each such assignment shall be of a
constant, not varying, percentage of all of the
assigning Lender's rights and obligations under this
Credit Agreement. Any assignment hereunder shall be
effective upon execution by all necessary parties of
the applicable assignment agreement, together with the
payment of a transfer fee of $3,500 to the Agent for
the account of the Agent. The assigning Lender will
give prompt notice to the Agent and the Borrower of any
such assignment. Upon the effectiveness of any such
assignment (and after notice to the Borrower as
provided herein), the assignee shall become a "Lender"
for all purposes of this Credit Agreement and the other
Credit Documents and, to the extent of such assignment,
the assigning Lender shall be relieved of its
obligations hereunder to the extent of the Loans and
Commitment components being assigned. Along such lines
the Borrower agrees that upon notice of any such
assignment and surrender of the appropriate Note or
Notes, it will promptly provide to the assigning Lender
and to the assignee separate promissory notes in the
amount of their respective interests substantially in
the form of the original Note (but with notation
thereon that it is given in substitution for and
replacement of the original Note or any replacement
notes thereof).
(c) Participations. Each Lender may sell,
transfer, grant or assign participations in all or any
part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall
remain a "Lender" for all purposes under this Credit
Agreement (such selling Lender's obligations under the
Credit Documents remaining unchanged) and the
participant shall not constitute a Lender hereunder,
(ii) no such participant shall have, or be granted,
rights to approve any amendment or waiver relating to
this Credit Agreement or the other Credit Documents
except to the extent any such amendment or waiver would
(A) reduce the principal of or rate of interest on or
fees in respect of any Loans in which the participant
is participating, or (B) postpone the date fixed for
any payment of principal (including the date of any
mandatory prepayment), interest or fees in which the
participant is participating, (iii) sub-participations
by the participant (except to an affiliate, parent
company or affiliate of a parent company of the
participant) shall be prohibited and (iv) any such
participations shall be in a minimum aggregate amount
of $5,000,000 of the Commitments and in integral
multiples of $1,000,000 in excess thereof. In the case
of any such participation, the participant shall not
have any rights under this Credit Agreement or the
other Credit Documents (the participant's rights
against the selling Lender in respect of such
participation to be those set forth in the
participation agreement with such Lender creating such
participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not
sold such participation.
8.3 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Borrower, the Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower and the
Agent or any Lender shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other
or further exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Agent or any Lender would otherwise
have. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the
rights of the Agent or the Lenders to any other or further action
in any circumstances without notice or demand.
8.4 Payment of Expenses, etc. The Borrower agrees to: (i)
pay all reasonable out-of-pocket costs and expenses of the Agent
in connection with the negotiation, preparation, execution and
delivery and administration of the Credit Agreement and the other
Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and
expenses of Moore & Van Allen, PLLC, special counsel to the
Agent) and any amendment, waiver or consent relating to this
Credit Agreement and the other Credit Documents to which it shall
consent, including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the
Borrower under this Credit Agreement and of the Agent and the
Lenders in connection with enforcement of the Credit Documents
and the documents and instruments referred to therein (including,
without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Agent and
each of the Lenders); (ii) pay and hold each of the Lenders
harmless from and against any and all present and future stamp
and other similar taxes with respect to the foregoing matters and
save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender)
to pay such taxes; and (iii) indemnify the Agent and each Lender,
their respective officers, directors, employees, representatives
and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by
any of them as a result of, or arising out of, or in any way
related to, or by reason of, any investigation, litigation or
other proceeding (whether or not the Agent or any Lender is a
party thereto) related to the entering into and/or performance of
any Credit Document or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit
Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any
such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified). All
legal fees to be paid in accordance with this Section 8.4 shall
be based on the actual amount of time expended in connection with
such matters at the usual hourly rates of such attorneys,
notwithstanding the provisions of N.C. Gen. Stat. Section 6-21.2.
8.5 Amendments, Waivers and Consents. Neither this Credit
Agreement nor any other Credit Document nor any of the terms
hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or
termination is in writing signed by the Required Lenders,
provided that no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender affected
thereby, (i) extend the scheduled maturities (including the final
maturity and any mandatory prepayments) of any Loan, or any
portion thereof, or reduce the rate or extend the time of payment
of interest (other than as a result of waiving the applicability
of any post-default increase in interest rates) thereon or fees
hereunder or reduce the principal amount thereof, or increase the
Commitments of the Lenders over the amount thereof in effect (it
being understood and agreed that a waiver of any Default or Event
of Default or of a mandatory reduction in the Commitments shall
not constitute a change in the terms of any Commitment of any
Lender), (ii) amend, modify or waive any provision of this
Section or Section 2.9, 2.10, 2.11, 2.12, 2.14, 7.7, and 8.4,
(iii) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders or (iv) consent to the
assignment or transfer by the Borrower of any of its rights and
obligations under this Credit Agreement. No provision of Section
7 may be amended without the consent of the Agent.
8.6 Counterparts. This Credit Agreement may be executed in
any number of counterparts, each of which where so executed and
delivered shall be an original, but all of which shall constitute
one and the same instrument. It shall not be necessary in making
proof of this Credit Agreement to produce or account for more
than one such counterpart.
8.7 Headings. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way
affect the meaning or construction of any provision of this
Credit Agreement.
8.8 Survival of Indemnification. All indemnities set forth
herein, including, without limitation, in Sections 2.10, 2.11 or
2.12 or 8.4 shall survive the execution and delivery of this
Credit Agreement, and the making of the Loans, the repayment of
the Loans and other obligations and the termination of the
Commitment hereunder.
8.9 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NORTH CAROLINA. Any legal action or
proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the courts of
the State of North Carolina in Mecklenburg County, or
of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit
Agreement, each party hereby irrevocably accepts for
itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts.
(b) Each party hereby irrevocably waives any
objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought
in the courts referred to in subsection (a) hereof and
hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action
or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH OF THE AGENTS, EACH OF THE LENDERS AND
THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
8.10 Severability. If any provision of any of the Credit
Documents is determined to be illegal, invalid or unenforceable,
such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or
unenforceable provisions.
8.11 Entirety. This Credit Agreement together with the
other Credit Documents represent the entire agreement of the
parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
8.12 Survival of Representations and Warranties. All
representations and warranties made by the Borrower herein shall
survive delivery of the Notes and the making of the Loans
hereunder.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and
delivered as of the date first above written.
BORROWER: UNIFI, INC.,
a New York corporation
By ROBERT A. WARD
Title EXECUTIVE VICE PRESIDENT
LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By RICHARD G. PARKHURST, JR.
Title VICE PRESIDENT
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By CHARLENE A. JOHNSON
Title VICE PRESIDENT
CREDIT SUISSE
By GEOFFREY M. CRAIG
Title MEMBER OF SENIOR MANAGEMENT
By KRISTINN R. KRISTINSSON
Title ASSOCIATE
Schedule 2.1(a)
Schedule of Lenders and
Commitments
Lender
Address for Notices
Address for Funding and Payments
Committed Amount
Commitment
Percentage
NationsBank, N.A.
NationsBank, N.A.
101 N. Tryon Street
Independence Center, 15th
Floor
NC1-001-15-04
Charlotte, North Carolina
28255
Attn: Linda Ballard
Ph: 704/386-9368
Fx: 704/386-9923
with a copy to:
NationsBank, N.A.
NationsBank Corporate
Center
100 N. Tryon Street, 8th
Floor
Charlotte, North Carolina
28255
Attn: Richard G.
Parkhurst, Jr.
Ph: 704/386-1828
Fx: 704/386-1270
NationsBank, N.A.
101 North Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Linda Ballard
Ph: 704/386-9368
Fx: 704/386-9923
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
100 N. Tryon Street, 8th Floor
Charlotte, North Carolina 28255
Attn: Richard G. Parkhurst, Jr.
Ph: 704/386-1828
Fx: 704/386-1270
$200,000,000
50%
Wachovia Bank of North
Carolina, N.A.
Wachovia Bank of North
Carolina, N.A.
100 N. Main Street
Mail Code 37207
Winston-Salem, North
Carolina 27150-3099
Attn: Charlene Johnson
Ph: 910/732-5472
Fx: 910/732-6935
Wachovia Bank of North Carolina,
N.A.
100 N. Main Street
Mail Code 37207
Winston-Salem, North Carolina
27150-3099
Attn: Charlene Johnson
Ph: 910/732-5472
Fx: 910/732-6935
$100,000,000
25%
Credit Suisse
Credit Suisse
12 East 49th Street
New York, New York 10017
Attn: Hazel Leslie
Ph: 212/238-5218
Fx: 212/238-5246
copy to:
Credit Suisse
191 Peachtree Street, N.E.
Suite 350
Atlanta, Georgia 30303
Attn: Chris Borin
Ph: 404/577-6100
Fx: 404/577-9029
Credit Suisse
12 East 49th Street
New York, New York 10017
Attn: Hazel Leslie
Ph: 212/238-5218
Fx: 212/238-5246
$100,000,000
25%
$400,000,000
100%
Schedule 2.1(b)(i)
FORM OF NOTICE OF COMMITTED BORROWING
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, UNIFI, INC. (the "Borrower"), refers to the
Credit Agreement dated as of April __, 1996 (as amended and
modified, from time to time, the "Credit Agreement"), among the
Borrower, the Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives notice that it requests a
Committed Loan borrowing pursuant to the provisions of Section
2.1(b) of the Credit Agreement and in connection herewith sets
forth below the terms on which such borrowing is requested to be
made:
(A) Date of Borrowing
(which is a Business Day) _______________________
(B) Principal Amount of
Borrowing _______________________
(C) Interest rate basis _______________________
(D) Interest Period and the
last day thereof _______________________
In accordance with the requirements of Section 3.2, the
Borrower hereby reaffirms the representations and warranties set
forth in the Credit Agreement as provided in subsection (b) of
such Section, and confirms that the matters referenced in
subsections (c) and (d) of such Section, are true and correct.
Very truly yours,
UNIFI, INC.
By:__________________________________
Name:___________________________
Title:_______________________________
Schedule 2.1(e)
FORM OF COMMITTED NOTE
$_________________ April __, 1996
FOR VALUE RECEIVED, UNIFI, INC., a New York corporation
(the "Borrower"), hereby promises to pay to the order of
___________________ ,its successors and assigns (the "Lender"),
at the office of NationsBank, N.A., as Agent (the "Agent"), at
101 N.Tryon Street, Independence Center, 15th Floor,
NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other
place or places as the holder hereof may designate), at the times
set forth in the Credit Agreement dated as of the date hereof
among the Borrower, the Lenders and the Agent (as it may be
amended and modified from time to time, the "Credit Agreement";
all capitalized terms not otherwise defined herein shall have the
meanings set forth in the Credit Agreement), but in no event
later than the Termination Date, in Dollars and in immediately
available funds, the principal amount of
________________________DOLLARS ($____________) or, if less than
such principal amount, the aggregate unpaid principal amount of
all Committed Loans made by the Lender to the Borrower pursuant
to the Credit Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with
Section 2.1(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an
Event of Default the balance outstanding hereunder shall bear
interest as provided in Section 2.3 of the Credit Agreement.
Further, in the event the payment of all sums due hereunder is
accelerated under the terms of the Credit Agreement, this Note
and all other indebtedness owing to the Lender under the Credit
Documents shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which
are hereby waived by the Borrower.
In the event this Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection,
including reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments
and prepayments of the principal hereof and interest hereon and
the respective dates thereof shall be endorsed by the holder
hereof on Schedule A attached hereto and incorporated herein by
reference, or on a continuation thereof which shall be attached
hereto and made a part hereof; provided, however, that any
failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect the
obligation of the Borrower to make payments of principal and
interest in accordance with the terms of this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Borrower has caused this Note
to be duly executed by its duly authorized officer as of the day
and year first above written.
UNIFI, INC.
By:____________________________
Name:
Title:
SCHEDULE A TO THE
COMMITTED NOTE
OF UNIFI, INC.
DATED APRIL __, 1996
Unpaid Name of
Type Principal Person
of Interest Payments Balance Making
Date Loan Period Principal Interest of Note Notation
Schedule 2.2(b)-1
FORM OF COMPETITIVE BID REQUEST
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, UNIFI, INC. (the "Borrower"), refers to the
Credit Agreement dated as of April __, 1996 (as amended and
modified from time to time, the "Credit Agreement"), among the
Borrower, the Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives you notice pursuant to
Section 2.2(b) of the Credit Agreement it requests solicitation
of Competitive Bids under the Credit Agreement, and in connection
herewith sets forth below the terms on which such Competitive Bid
Loan borrowing is requested to be made:
(A) Competitive Bid Request is/is not
an Accommodating Competitive Bid
Request
(B) Date of Competitive Bid Loan Borrowing
(which is a Business Day) __________________
(C) Principal Amount of
Competitive Bid Loan Borrowing __________________
(D) Interest Period and the last
day thereof __________________
In accordance with the requirements of Section 3.2, the
Borrower hereby reaffirms the representations and warranties set
forth in the Credit Agreement as provided in subsection (b) of
such Section, and confirms that the matters referenced in
subsections (c) and (d) of such Section, are true and correct.
Very truly yours,
UNIFI, INC.
By:____________________________
Name:
Title:
Schedule 2.2(b)-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
Dear Sirs:
Reference is made to the Credit Agreement dated as of
April __, 1996 (as amended and modified from time to time, the
"Credit Agreement"), among UNIFI, INC. (the "Borrower"), the
Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower made a Competitive Bid Request on
_____________, 19__, pursuant to Section 2.2(b) of the Credit
Agreement, and in that connection you are invited to submit a
Competitive Bid by 10:00 A.M. (Charlotte, North Carolina time)
______________, 19__ [Date of Proposed Competitive Bid Loan
Borrowing] Your Competitive Bid must comply with Section 2.2(c)
of the Credit Agreement and the terms set forth below on which
the Competitive Bid Request was made:
(A) Date of Competitive Bid Borrowing __________________
(B) Principal amount of
Competitive Bid Borrowing __________________
(C) Interest Period and the last
day thereof __________________
Very truly yours,
NATIONSBANK, N.A., as Agent
By:_______________________________
Name:
Title:
Schedule 2.2(c)
FORM OF COMPETITIVE BID
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Credit
Agreement dated as of April __, 1996 (as amended and modified
from time to time, the "Credit Agreement"), among UNIFI, INC.
(the "Borrower"), the Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement.
The undersigned hereby makes a Competitive Bid pursuant to
Section 2.2(c) of the Credit Agreement, in response to the
Competitive Bid Request made by the Borrower on ________________,
19__, and in that connection sets forth below the terms on which
such Competitive Bid is made:
(A) Principal Amount ____________________
(B) Competitive Bid Rate ____________________
(C) Interest Period and last
day thereof ____________________
The undersigned hereby confirms that it is prepared,
subject to the conditions set forth in the Credit Agreement, to
extend credit to the Borrower upon acceptance by the Borrower of
this bid in accordance with Section 2.2(e) of the Credit
Agreement.
Very truly yours,
[NAME OF LENDER]
By:______________________________
Name:
Title:
Schedule 2.2(e)
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, UNIFI, INC. (the "Borrower"), refers
to the Credit Agreement dated as of April __, 1996 (as amended
and modified from time to time, the "Credit Agreement"), among
the Borrower, the Lenders and NationsBank, N.A., as Agent.
In accordance with Section 2.2(d) of the Credit
Agreement, we have received a summary of bids in connection with
our Competitive Bid Request dated ______________ and in
accordance with Section 2.2(d) of the Credit Agreement, we hereby
accept the following bids for maturity on [date]:
Interest
Principal Amount Competitive Bid Rate Paid Lender
$ [%]
$ [%]
We hereby reject the following bids:
Interest
Principal Amount Competitive Bid Rate Paid Lender
$ [%]
$ [%]
The Competitive Bid Loans accepted as provided above
should be deposited in the general deposit account maintained by
the Borrower with NationsBank, N.A. on [date].
Very truly yours,
UNIFI, INC.
By:_____________________________
Name:
Title:
Schedule 2.2(i)
FORM OF COMPETITIVE BID NOTE
$400,000,000 April __, 1996
FOR VALUE RECEIVED, UNIFI, INC., a New York corporation
(the "Borrower"), hereby promises to pay to the order of
_________________________, its successors and permitted assigns
(the "Lender"), at the office of NationsBank, N.A., as Agent (the
"Agent"), at 101 N. Tryon Street, Independence Center, 15th
Floor, NC1-001-15-04, Charlotte, North Carolina 28255 (or at such
other place or places as the holder hereof may designate), at the
times set forth in the Credit Agreement dated as of the date
hereof among the Borrower, the Lenders and the Agent (as it may
be amended and modified from time to time, the "Credit
Agreement"; all capitalized terms not otherwise defined herein
shall have the meanings set forth in the Credit Agreement), but
in no event later than the Termination Date, in Dollars and in
immediately available funds, the principal amount of FOUR HUNDRED
MILLION DOLLARS ($400,000,000) or, if less than such principal
amount, the aggregate unpaid principal amount of all Competitive
Bid Loans made by the Lender to the Borrower pursuant to the
Credit Agreement, and to pay interest from the date hereof on the
unpaid principal amount hereof, in like money, at said office,
on the dates and at the rates selected in accordance with Section
2.2(g) of the Credit Agreement and in the respective Competitive
Bid applicable to each Competitive Bid Loan borrowing evidenced
hereby.
Upon the occurrence and during the continuance of an
Event of Default the balance outstanding hereunder shall bear
interest as provided in Section 2.3 of the Credit Agreement.
Further, in the event the payment of all sums due hereunder is
accelerated under the terms of the Credit Agreement, this Note
and all other indebtedness owing to the Lender under the Credit
Documents shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which
are hereby waived by the Borrower.
In the event this Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection,
including reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments
and prepayments of the principal hereof and interest hereon and
the respective dates thereof shall be endorsed by the holder
hereof on Schedule A attached hereto and incorporated herein by
reference, or on a continuation thereof which shall be attached
hereto and made a part hereof; provided, however, that any
failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect the
obligation of the Borrower to make payments of principal and
interest in accordance with the terms of this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Borrower has caused this Note
to be duly executed by its duly authorized officer as of the day
and year first above written.
UNIFI, INC.
By:___________________________
Name:
Title:
SCHEDULE A TO THE
COMPETITIVE BID NOTE
OF UNIFI, INC.
DATED APRIL __, 1996
Unpaid Name of
Type Principal Person
of Interest Payments Balance Making
Date Loan Period Principal Interest of Note Notation
Schedule 2.4
FORM OF NOTICE OF CONVERSION OR EXTENSION
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, UNIFI, INC. (the "Borrower"), refers to the
Credit Agreement dated as of April __, 1996 (as amended and
modified from time to time, the "Credit Agreement"), among the
Borrower, the Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives notice pursuant to Section
2.4 of the Credit Agreement that it requests an extension or
conversion of a Committed Loan outstanding under the Credit
Agreement, and in connection herewith sets forth below the terms
on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which, with regard to Eurodollar
Loans, is the last day of the
the applicable Interest Period) ______________________
(B) Principal Amount of
Extension or Conversion _______________________
(C) Interest rate basis _______________________
(D) Interest Period and the
last day thereof _______________________
In accordance with the requirements of Section 3.2, the
Borrower hereby reaffirms the representations and warranties set
forth in the Credit Agreement as provided in subsection (b) of
such Section, and confirms that the matters referenced in
subsections (c) and (d) of such Section, are true and correct.
Very truly yours,
UNIFI, INC.
By:__________________________________
Name:
Title:
Schedule 2.5(b)
FORM OF NOTICE OF VOLUNTARY PREPAYMENT
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, UNIFI, INC. (the "Borrower"), refers to
the Credit Agreement dated as of April __, 1996 (as amended and
modified from time to time, the "Credit Agreement"), among the
Borrower, the Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives notice pursuant to Section
2.5(c) of the Credit Agreement of a voluntary prepayment on the
Revolving Loans:
(A) Date of Voluntary Prepayment
(which, with regard to Eurodollar
Loans, is the last day of the
the applicable Interest Period) _______________________
(B) Principal Amount of
Voluntary Prepayment _______________________
Amounts prepaid hereby may be reborrowed subject to the
terms and conditions of the Credit Agreement.
Very truly yours,
UNIFI, INC.
By:__________________________________
Name:
Title:
Schedule 2.11
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as
of April __,1996, as amended and modified from time to time
thereafter, among Unifi, Inc., the Lenders party thereto and
NationsBank, N.A., as Agent (the "Credit Agreement"). Pursuant to
Section 2.11 of the Credit Agreement, the undersigned hereby
certifies that it is not a "bank" as such term is used in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By:___________________________
Name:
Title:
Schedule 5.1(c)
Form of Officer's Compliance Certificate
For the fiscal quarter ended _________________, 19___.
I, ______________________, [Title] of UNIFI, INC. (the
"Borrower") hereby certify that, to the best of my knowledge and
belief, with respect to that certain Credit Agreement dated as of
April __, 1996 (as amended and modified from time to time, the
"Credit Facility"; all of the defined terms in the Credit
Agreement are incorporated herein by reference) among the
Borrower, the Lenders party thereto and NationsBank, N.A., as
Agent:
a. The company-prepared financial statements which
accompany this certificate are true and correct in all material
respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis,
subject to changes resulting from audit and normal year-end audit
adjustments; and
b. Since ___________ (the date of the last similar
certification, or, if none, the Closing Date) no Default or Event
of Default has occurred under the Credit Agreement.
c. Attached are computations demonstrating compliance
with the financial covenants set out in Section 5.9 of the Credit
Agreement.
This ______ day of ___________, 19__.
UNIFI, INC.
By:________________________________
Name:
Title:
Schedule 5.10
Existing Funded Debt
Schedule 8.2(b)
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of ________, 199_
is entered into between ________________ ("Assignor") and
____________________ ("Assignee").
Reference is made to the Credit Agreement dated as of
April __, 1996, as amended and modified from time to time
thereafter (the "Credit Agreement") among UNIFI, the Lenders
party thereto and NationsBank, N.A., as Agent. Terms defined in
the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without
recourse, to the Assignee, and the Assignee hereby purchases and
assumes, without recourse,from the Assignor, effective as of the
Effective Date set forth below, the interests set forth below
(the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Commitments of
the Assignor on the effective date of the assignment designated
below (the "Effective Date") and the Committed Loans owing to the
Assignor which are outstanding on the Effective Date, together
with unpaid interest accrued on the assigned Loans to the
Effective Date and the amount, if any, set forth below of
the Fees accrued to the Effective Date for the account of the
Assignor. Each of the Assignor and the Assignee hereby makes and
agrees to be bound by all the representations, warranties and
agreements set forth in Section 8.2(b) of the Credit Agreement,
a copy of which has been received by each such party. From
and after the Effective Date (i) the Assignee, if it is not
already a Lender under the Credit Agreement, shall be a party to
and be bound by the provisions of the Credit Agreement and, to
the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the
interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit
Agreement.
2. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of North
Carolina.
3. Terms of Assignment
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment:
(e) Commitment Percentage Assigned
(expressed as a percentage of
the Total Committed Amount and
set forth to at least 8 decimals) %
(f) Commitment Percentage of
Assignor after Assignment
(set forth to at least 8 decimals) %
(g) Total Committed Loans outstanding
as of Effective Date $_____________
(h) Principal Amount of Committed
Loans assigned on Effective
Date (the amount set forth
in (g) multiplied by the
percentage set forth in (e)) $_____________
The terms set forth above
are hereby agreed to:
____________________, as Assignor
By:_____________________________________
Name:
Title:
_____________________, as Assignee
By:_____________________________________
Name:
Title:
CONSENTED TO:
NATIONSBANK, N.A., as Agent
By:____________________________________
Name:
Title:
UNIFI, INC.
By:____________________________________
Name:
Title: