Exhibit (10o)
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 Existence . . 39
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; Venue . . 54
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 Less than or =
1.0 to 1.0
but <1.5:1.0 0.00% 0.225% 0.100%
III Less than or =
1.5:1.0 but
<2.5:1.0 0.00% 0.265% 0.110%
IV Less than or =
2.5:1.0 but
<3.0:1.0 0.00% 0.300% 0.125%
V Less than 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
----------------------------- Rate
1 - CD Reserve Percentage
"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
computation of of time hereunder, the word "from" means "from and
including" and the "to" and "until" each mean "to but excluding."
1.3 Accounting Terms. Except as otherwise expressly
provided herein, accounting terms used herein shall be
interpreted, and all financial 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 of
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
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.
[Subsection:4,6] 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. Subsection 763.3), underground storage tanks,
"asbestos" (as defined in 40 C.F.R. Subsection 763.63) or the
past or present accumulation, spillage or leakage of any such
substance, (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 obligation 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 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. Subsection
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 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
_____________________________
Title VICE PRESIDENT
__________________________
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By CHARLENE JOHNSON
_____________________________
Title VICE PRESIDENT
__________________________
CREDIT SUISSE
By GEOFFREY M. CRAIG
_____________________________
Title MEMBER OF MANAGEMENT
__________________________
By KRISTINN R. KRISTINSSON
_____________________________
Title ASSOCIATE
__________________________
Schedule 2.1(a)
Schedule of Lenders and
Commitments
Address for Address for Committed Committed
Lender Notices Funding and Amount Percentage
Payments
- ------ ----------- ------------ -------- ----------
NationsBank, N.A.
NationsBank, N.A. NationsBank, NA
101 N. Tryon Street 101 N. Tryon St.
Independence Center, Independence Ctr.
15th Floor 15th Floor
NC1-001-15-04 NC-001-15-04
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Linda Ballard Attn: Linda Ballard
Ph: 704/386-9368 Ph: 704/386-9368
Fx: 704/386-9923 Fx: 704/386-9923 $200,000,000 50%
with a copy to:
NationsBank, N.A.
NationsBank Corporate NationsBank Corporate
Center Center
100 N. Tryon Street, 100 N. Tryon Street,
8th Floor 8th Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: R.G. Parkhurst, Jr.Attn: RG Parkhurst, Jr.
Ph: 704/386-1828 Ph: 704/386-1828
Fx: 704/386-1270 Fx:704/386-1270
Wachovia Bank of North
Carolina, N.A.
Wachovia Bank of North Wachovia Bank of North
Carolina, N.A. Carolina, N.A.
100 N. Main Street 100 N. Main Street
Mail Code 37207 Mail Code 37207
Winston-Salem, North Winston-Salem, NC
Carolina 27150-3099 27150-3099
Attn: Charlene Johnson Attn: Charlene Johnson
Ph: 910/732-5472 Ph: 910/732-5472
Fx: 910/732-6935 Fx: 910/732-6935
$100,000,000 25%
Credit Suisse
Credit Suisse Credit Suisse
12 East 49th Street 191 Peachtree St.
New York, NY 10017 Suite 3500
Attn: Hazel Leslie Atlanta, GA 30303
Ph: 212/238-5218 Attn: Chris Boren
Fx: 212/238-5246 Ph: 404/577/6100
Fx: 404/577-9029
$100,000,000 25%
PAGE
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) _______________________
(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 2.11
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
TYPE OF FUNDED DEBT AMOUNT
- -----------------------------------------------------------------
Unifi, Inc. 6% Convertible
Subordinated Note Due 2002 $230,000,000.00
issuable only in registered
form without coupons and
only in denominations of
$1,000.00 and any integral
multiple thereof.
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