Exhibit 4.1
$80,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
November 18, 1994
among
Cone Mills Corporation,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS1
Page
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations . . . . . . . . . 17
SECTION 1.03. Types of Borrowings . . . . . . . . . . . . . . . . . 17
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . . . . . . 18
SECTION 2.02. Notice of Committed Borrowing. . . . . . . . . . . . 18
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. Maturity of Loans . . . . . . . . . . . . . . . . . . 24
SECTION 2.07. Interest Rates . . . . . . . . . . . . . . . . . . . 24
SECTION 2.08. Facility Fees . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. Optional Termination or Reduction of Commitments . . 29
SECTION 2.10. Mandatory Termination of Commitments . . . . . . . . 30
SECTION 2.11. Optional Prepayments . . . . . . . . . . . . . . . . 30
SECTION 2.12. Additional Interest . . . . . . . . . . . . . . . . . 30
SECTION 2.13. General Provisions as to Payments . . . . . . . . . . 31
SECTION 2.14. Funding Losses . . . . . . . . . . . . . . . . . . . 32
SECTION 2.15. Computation of Interest and Fees . . . . . . . . . . 32
SECTION 2.16. Withholding Tax Exemption . . . . . . . . . . . . . . 32
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.02. Transitional Provisions . . . . . . . . . . . . . . . 34
SECTION 3.03. Borrowings . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power . . . . . . . . . . . . 36
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . . 36
SECTION 4.04. Financial Information . . . . . . . . . . . . . . . . 36
SECTION 4.05. Litigation . . . . . . . . . . . . . . . . . . . . . 37
1The Table of Contents is not a part of this Agreement.
i
Page
SECTION 4.06. Compliance with ERISA . . . . . . . . . . . . . . . . 37
SECTION 4.07. Environmental Matters . . . . . . . . . . . . . . . . 38
SECTION 4.08. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.09. Compliance with Laws . . . . . . . . . . . . . . . . 38
SECTION 4.10. Not an Investment Company . . . . . . . . . . . . . . 39
SECTION 4.11. Title to Properties . . . . . . . . . . . . . . . . . 39
SECTION 4.12. Full Disclosure . . . . . . . . . . . . . . . . . . . 39
ARTICLE V
COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.02. Payment of Obligations . . . . . . . . . . . . . . . 42
SECTION 5.03. Maintenance of Property; Insurance . . . . . . . . . 43
SECTION 5.04. Conduct of Business and Maintenance of Existence . . 43
SECTION 5.05. Compliance with Laws . . . . . . . . . . . . . . . . 43
SECTION 5.06. Inspection of Property, Books and Records . . . . . . 44
SECTION 5.07. Transactions with Affiliates . . . . . . . . . . . . 44
SECTION 5.08. Debt . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.09. Contingent Obligations . . . . . . . . . . . . . . . 45
SECTION 5.10. Debt Ratio . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.11. Interest Coverage Ratio . . . . . . . . . . . . . . . 45
SECTION 5.12. Investments . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.13. Negative Pledge . . . . . . . . . . . . . . . . . . . 46
SECTION 5.14. Consolidations, Mergers and Sales of Assets . . . . . 47
SECTION 5.15. Use of Proceeds . . . . . . . . . . . . . . . . . . . 47
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . 48
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . . 50
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization . . . . . . . . . . . . 51
SECTION 7.02. Agent and Affiliates . . . . . . . . . . . . . . . . 51
SECTION 7.03. Action by Agent . . . . . . . . . . . . . . . . . . . 51
SECTION 7.04. Consultation with Experts . . . . . . . . . . . . . . 51
SECTION 7.07. Credit Decision . . . . . . . . . . . . . . . . . . . 52
SECTION 7.08. Successor Agent . . . . . . . . . . . . . . . . . . . 52
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Page
SECTION 7.09. Agent's Fee . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.03. Increased Cost and Reduced Return . . . . . . . . . . 54
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.03. Expenses; Documentary Taxes; Indemnification . . . . 58
SECTION 9.04. Sharing of Set-Offs . . . . . . . . . . . . . . . . . 59
SECTION 9.05. Amendments and Waivers . . . . . . . . . . . . . . . 59
SECTION 9.06. Successors and Assigns . . . . . . . . . . . . . . . 60
SECTION 9.07. Collateral . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.08. Governing Law; Submission to Jurisdiction . . . . . . 62
SECTION 9.09. Counterparts; Integration . . . . . . . . . . . . . . 62
SECTION 9.10. Confidentiality . . . . . . . . . . . . . . . . . . . 62
SECTION 9.11. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . 63
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of General Counsel of the Borrower
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of November 18, 1994 among CONE MILLS
CORPORATION, the BANKS listed on the signature pages hereof and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
WHEREAS, Cone Mills Corporation (together with its successors, the
"Borrower"), the banks party thereto (the "Banks") and Morgan Guaranty
Trust Company of New York, as agent, are parties to a Credit Agreement
dated as of August 13, 1992 (as amended prior to the effectiveness of the
Amended Agreement (as defined below), the "Original Agreement"); and
WHEREAS, the Borrower and the Banks wish to amend the Original
Agreement by, among other things, increasing the aggregate amount of the
commitments thereunder, changing the basis upon which certain interest
rates applicable to the loans outstanding or to be made thereunder are to
be determined, and replacing certain financial covenants contained therein;
NOW, THEREFORE, the parties hereto agree that, on and as of the
Effective Date (as defined below), the Original Agreement is amended and
restated in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Acquisition" means the acquisition by the Borrower or any
Subsidiary of any asset of any Person, whether by purchase, merger or
otherwise, which, or which together with other such acquisitions,
constitutes one or more businesses or substantially all of the assets of
one or more businesses.
"Additional Interest" means, for any period, with respect to a Loan
of any Type, an amount of interest calculated on the average daily amount
of Loans of such Type
outstanding during such period (computed for the actual number of days
in such period) at a rate per annum determined with reference to the
Applicable Ratio as of the last day of the Relevant Quarter as set
forth below:
Applicable Ratio Additional Interest Rate
Less than 35% Base Rate Loans: 0 %
CD Loans: 0 %
Euro-Dollar Loans: 0 %
Equal to or greater than Base Rate Loans: 0 %
35% and less than CD Loans: .10%
50% Euro-Dollar Loans: .10%
Equal to or greater than Base Rate Loans: 0 %
50% CD Loans: .20%
Euro-Dollar Loans: .20%
If on or prior to the date of determination of Additional Interest on any
Loan the Borrower shall not have delivered to the Banks the financial
statements for the Relevant Quarter, the Applicable Ratio will be deemed to
be equal to 50%.
"Adjusted Cash Flow" means, for any period, the sum of (i)
Consolidated Net Income for such period determined before giving effect to
any net gain or loss with respect to discontinued operations during such
period, plus (ii) the aggregate amount deducted in determining the amount
determined pursuant to clause (i) for such period in respect of (A)
depreciation, (B) amortization and (C) any increase (or minus the aggregate
amount added in respect of any decrease) in consolidated deferred tax
liabilities of the Borrower and its Subsidiaries.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted Debt to Capital Ratio" means as of any date the ratio of
Adjusted Total Consolidated Debt as of such date to Adjusted Total
Consolidated Capitalization as of such date, expressed as a percentage.
"Adjusted London Interbank Offered Rate" has the meaning set forth
in Section 2.07(c).
"Adjusted Total Consolidated Capitalization" means as of any date
(i) Total Consolidated Capitalization as of such date plus (ii) eight times
Consolidated Operating Lease Expense for the period of four consecutive
fiscal quarters of the Borrower ended on or most recently prior to such
date.
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"Adjusted Total Consolidated Debt" means as of any date (i) Total
Consolidated Debt as of such date plus (ii) eight times Consolidated
Operating Lease Expense for the period of four consecutive fiscal quarters
of the Borrower ended on or most recently prior to such date.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and
submitted to the Agent (with a copy to the Borrower) duly completed by such
Bank.
"Affiliate" means (i) any Person that directly, or indirectly
through one or more intermediaries, controls the Borrower (a "Controlling
Person") or (ii) any Person (other than the Borrower or a Subsidiary) which
is controlled by or is under common control with a Controlling Person. As
used herein, the term "control" means the possession, directly or
indirectly, of power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities,
by contract or otherwise and the term "voting securities" means securities
or interests entitling the holder thereof to vote for or designate
directors or individuals performing a similar function.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such
capacity.
"Agreement" means the Original Agreement as amended and restated by
this Amended Agreement and as the same may be further amended or restated
from time to time in accordance with the terms hereof.
"Amended Agreement" means this Amended and Restated Credit
Agreement dated as of November 18, 1994 among the Borrower, the Banks and
the Agent.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in
the case of its Money Market Loans, its Money Market Lending Office.
"Applicable Ratio" means as of any date the Adjusted Debt to
Capital Ratio as of such date.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 9.06(c).
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"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their
respective successors.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1%
plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed
Borrowing or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
"Borrower" means Cone Mills Corporation, a North Carolina
corporation, and its successors.
"Borrower's 1993 Form 10-K" means the Borrower's annual report on
Form 10-K for the fiscal year ended December 29, 1993, as filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934.
"Borrower's Second Quarter 10-Q" means the Borrower's quarterly
report for the fiscal quarter ended June 29, 1994, as filed with the
Securities and Exchange Commission on Form 10-Q pursuant to the Securities
Exchange Act of 1934.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan
in accordance with the applicable Notice of Committed Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means Wachovia Bank of North Carolina, N.A.,
and Morgan Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the
4
signature pages hereof, as such amount may be reduced from time to time
pursuant to Sections 2.09 and 2.10.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.01.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, for such period.
"Consolidated Net Income" means, for any period, the net income of
the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, for such period.
"Consolidated Operating Lease Expense" means, for any period, the
aggregate rental expense of the Borrower and its Consolidated Subsidiaries
(other than with respect to capital leases), determined on a consolidated
basis, for such period.
"Consolidated Subsidiary" means as of any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
"Contingent Obligation" of any Person means as of any date any Debt
of such Person, including, without limitation, all Debt of others
Guaranteed by such Person and all Contingent Reimbursement Obligations of
such Person, that is not or would not be set forth in a balance sheet of
such Person as of such date.
"Contingent Reimbursement Obligation" of any Person means as of any
date any contingent obligation of such Person to reimburse, directly or
indirectly, any bank or other Person in respect of amounts paid under a
letter of credit or similar instrument.
"Cornwallis" means Cornwallis Development Company, a North
Carolina corporation and a Wholly Owned Consolidated Subsidiary, and its
successors.
"Cornwallis Debt" means Debt of Cornwallis incurred in connection
with the development and sale of real estate in the ordinary course of its
business and with respect to which (i) neither the Borrower nor any
Subsidiary other than Cornwallis has any liability, absolute or contingent,
other than Contingent Obligations of the
5
Borrower to the extent permitted by Section 5.09, and (ii) recourse is
expressly limited to Cornwallis and the real property or other tangible assets
of Cornwallis (and no property or assets of the Borrower or any other
Subsidiary) that are the subject of the relevant financing, except to
the extent of the Contingent Obligations of the Borrower referred to in
clause (i) above.
"Debt" of any Person means as of any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such
Person as lessee which are capitalized in accordance with generally
accepted accounting principles, (v) all obligations, fixed or contingent,
of such Person to reimburse any bank or other Person in respect of amounts
paid under a letter of credit or similar instrument, (vi) all Debt of
others secured by a Lien on any asset of such Person, whether or not such
Debt is assumed by such Person, and (vii) all Debt of others Guaranteed by
such Person.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Disclosure Schedule" means the schedule captioned "Disclosure
Schedule" delivered to the Banks by the Borrower prior to the date of the
Original Agreement.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law
to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Bank may hereafter designate as its
Domestic Lending Office by notice to the Borrower and the Agent; provided
that any Bank may so designate separate Domestic Lending Offices for its
Base Rate Loans, on the one hand, and its CD Loans, on the other hand, in
which case all references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such offices, as the
context may require.
6
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.07(b).
"EBIT" means, for any period, the sum of (i) Consolidated Net
Income for such period, plus (ii) the aggregate amount deducted in
determining Consolidated Net Income for such period in respect of
Consolidated Interest Expense and income taxes.
"Effective Date" means the date this Amended Agreement becomes
effective in accordance with Section 3.01.
"Elmore Litigation" means the class action proceeding commenced by
William J. Elmore and Wayne Comer against the Borrower, et al., in the
United States District Court in Greenville, South Carolina and pending in
such court as of the date hereof.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements or other governmental restrictions
relating to the environment, or to the effect of the environment on human
health or to emissions, discharges or releases of pollutants, contaminants,
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,
petroleum or petroleum products, chemicals or industrial, toxic or
Hazardous Substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of
a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or
any Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"ESOP" means the Cone Mills Corporation 1983 Employee Stock
Ownership Plan effective as of January 1, 1983, as amended and in effect
from time to time.
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"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to
each Bank, its office, branch or affiliate located at
its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Euro-Dollar Lending Office) or such
other office, branch or affiliate of such Bank as it may hereafter
designate as its Euro-Dollar Lending Office by notice to the Borrower and
the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices of
Wachovia Bank of North Carolina, N.A., and Morgan Guaranty Trust Company of
New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Receivables Purchase Agreement" means the receivables
purchase agreement between the Borrower and Delaware Funding Corporation
dated as of August 11, 1992, as amended or renewed from time to time.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Domestic Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day,
and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to Morgan Guaranty
8
Trust Company of New York on such day on such transactions as determined
by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the
Base Rate pursuant to Section 8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means (i) any "hazardous substance" as
defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.), as amended from
time to time and regulations promulgated thereunder, (ii) any "hazardous
waste" as defined in the Resource Conservation and Recovery Act of 1976 (42
U.S.C. Sections 6901 et seq.) as amended from time to time, and regulations
promulgated thereunder, (iii) asbestos, (iv) polychlorinated biphenyls, (v)
petroleum, its derivatives, by-products and other hydrocarbons and (vi) any
other toxic, radioactive, caustic or otherwise hazardous substance
regulated under laws relating to the environment.
"HLT Status" shall be in effect from and after the date, if any, on
which the Agent determines that, or the Agent is advised by any Bank that
such Bank has received notice from any governmental authority, central bank
or comparable agency having jurisdiction over such Bank that, Loans
hereunder are classified as a "highly leveraged transaction". The Agent
shall promptly give notice of the effectiveness of any HLT Status to the
Borrower and the other Banks.
9
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending
one, two, three or six months thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date
of such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
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(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of
months thereafter as the Borrower may elect in accordance with Section
2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days nor more than 180 days) as the
Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means
of share purchase, capital contribution, loan, time deposit or otherwise;
provided that in no event shall an Acquisition be an Investment.
11
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing. Loans hereunder are
distinguished by "Type". The "Type" of a Loan refers to whether such Loan
is a Base Rate Loan, a CD Loan, a Euro-Dollar Loan or a Money Market Loan.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount exceeding
$2,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Agent; provided that any Bank may from time to time by
notice to the Borrower and the Agent designate separate Money Market
Lending Offices for its Money Market LIBOR Loans, on the one hand, and its
Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may
require.
12
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"Notes" means promissory notes of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined
in Section 2.03(f)).
"Original Agreement" has the meaning set forth in the first WHEREAS
clause.
"Outstanding Receivables Amount" means, as of any date, the
aggregate unrecovered purchase price as of such date in respect of all
accounts receivable (or interests therein) sold by the Borrower to the
Receivables Purchaser on or prior to such date pursuant to the terms of the
Receivables Purchase Agreement.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
13
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed
to, by any Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to
time as its Prime Rate.
"Qualifying Employer Securities" means qualifying employer
securities as defined in Section 407(d)(5) of ERISA.
"Quarterly Date" means each March 31, June 30, September 30 and
December 31.
"Receivables Purchase Agreement" means (i) the Existing Receivables
Purchase Agreement and (ii) if such Agreement is no longer in effect, any
other agreement between the Borrower and the Receivables Purchaser
providing for the purchase by the Receivables Purchaser of accounts
receivable of the Borrower (or interests therein) in such aggregate amount
and on such terms as shall be reasonably satisfactory to the Banks.
"Receivables Purchaser" means Delaware Funding Corporation or any
other financial institution to which the Required Banks consent, which
consent will not be unreasonably withheld.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any
one of such Reference Banks.
14
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of March 30, 1992 by and between the Borrower and the
shareholders of the Borrower named on the signature pages thereof, as in
effect on the date of the Original Agreement.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Relevant Quarter" means, as of any date of determination of
Additional Interest payable under Section 2.12 or facility fees payable
under Section 2.08, the fiscal quarter of the Borrower most recently ended
prior to such date for which financial statements shall have been required
to be delivered to the Banks prior to such date pursuant to subsection (a)
or (b), as the case may be, of Section 5.01.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 66 2/3% of the aggregate
unpaid principal amount of the Loans.
"Responsible Officer" means any of the chief executive officer,
chief operating officer, chief financial officer or chief accounting
officer of the Borrower or any other officer of the Borrower involved
principally in its financial administration or its controllership function.
"Restricted Payment" means (i) any dividend or other distribution
on any shares of the Borrower's capital stock (except dividends payable
solely in shares of its capital stock) or (ii) any payment on account of
the purchase, redemption, retirement or acquisition of (a) any shares of
the Borrower's capital stock or (b) any option, warrant or other right to
acquire shares of the Borrower's capital stock.
"Special Retirement Account" means the Special Retirement Account
of the Supplemental Retirement Plan.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of
15
directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.
"Supplemental Retirement Plan" means the Supplemental Retirement
Plan of Cone Mills Corporation, effective as of January 1, 1984, as amended
and in effect from time to time.
"Temporary Cash Investment" means any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) time deposits
with, including certificates of deposit issued by, any office located in
the United States of any bank or trust company which is organized under the
laws of the United States or any state thereof and (A) which is a Bank or
(B) whose short-term certificates of deposit are rated at least A-1 by
Standard & Poor's Ratings Group or P-1 by Moody's Investors Service, Inc.
and (iii) investment grade commercial instruments.
"Termination Date" means August 13, 1997, or, if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in
which case the Termination Date shall be the next preceding Euro-Dollar
Business Day.
"Total Consolidated Capitalization" means as of any date the sum of
(i) Total Consolidated Debt plus (ii) the aggregate amount of the
consolidated long term deferred tax liabilities of the Borrower and its
Consolidated Subsidiaries, plus (iii) stockholders' equity of the Borrower
and its Consolidated Subsidiaries plus (iv) the aggregate amount deducted
in determining such stockholders' equity with respect to minority interests
in Subsidiaries that are not Wholly Owned Consolidated Subsidiaries, in
each case determined on a consolidated basis as of such date.
"Total Consolidated Debt" means as of any date (i) all Debt of the
Borrower and its Consolidated Subsidiaries determined on a consolidated
basis, as of such date, as the same is or would be set forth in a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of such date (including without limitation all short-term
Debt and the current portion of all long-term Debt) plus (ii) the
Outstanding Receivables Amount as of such date.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under
such Plan exceeds (ii) the fair market value of all Plan assets allocable
to such
16
benefits (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
"Wholly Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the
most recent audited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries delivered to the Banks; provided that, if the
Borrower notifies the Agent that the Borrower wishes to amend any covenant
in Article V to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if the Agent
notifies the Borrower that the Required Banks wish to amend Article V for
such purpose), then the Borrower's compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted
accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes
the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or
by reference to the provisions of Article II under which participation
therein is determined (i.e., a "Committed Borrowing" is a Borrowing under
Section 2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.03 in which the Bank participants are
17
determined on the basis of their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to lend to the
Borrower pursuant to this Section from time to time amounts not to exceed
in the aggregate at any one time outstanding the amount of its Commitment.
Each Borrowing under this subsection (a) shall be in an aggregate principal
amount of $1,000,000 or any larger multiple of $1,000,000 (except that any
such Borrowing may be in the aggregate amount available in accordance with
Section 3.03(b)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits,
the Borrower may borrow under this Section, repay, or to the extent
permitted by Section 2.13, prepay Loans and reborrow at any time under this
Section.
SECTION 2.02. Notice of Committed Borrowing. (a) The Borrower
shall give the Agent notice (a "Notice of Committed Borrowing") not later
than 11:00 A.M. (New York City time) on (x) the date of each Base Rate
Borrowing, (y) the second Domestic Business Day before each CD Borrowing
and (z) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Notwithstanding the foregoing, no more than six Fixed Rate
Committed Borrowings shall be outstanding at any one time and any Borrowing
which would exceed such limitation shall be made as a Base Rate Borrowing.
18
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in this Section,
request the Banks to make offers to make Money Market Loans to the
Borrower. The Banks may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall
transmit to the Agent by telex or facsimile transmission a Money Market
Quote Request substantially in the form of Exhibit B hereto so as to be
received no later than 10:30 A.M. (New York City time) on (x) the fifth
Euro-Dollar Business Day prior to the date of Borrowing proposed therein,
in the case of a LIBOR Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have notified
to the Banks not later than the date of the Money Market Quote Request for
the first LIBOR Auction or Absolute Rate Auction for which such change is
to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than
one Interest Period in a single Money Market Quote Request. No Money
Market Quote Request shall be given within five Euro-Dollar Business Days
(or such other number of days as the Borrower and the Agent may agree) of
any other Money Market Quote Request.
19
(c) Invitation for Money Market Quotes. Promptly upon receipt of
a Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially
in the form of Exhibit C hereto, which shall constitute an invitation by
the Borrower to each Bank to submit Money Market Quotes offering to make
the Money Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes.
Each Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section 9.01 not
later than (x) 2:00 P.M. (New York City time) on the fourth Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) 9:30 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Agent shall have mutually
agreed and shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that Money
Market Quotes submitted by the Agent (or any affiliate of the Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the
Agent or such affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior to the deadline
for the other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior
to the deadline for the other Banks, in the case of an Absolute Rate
Auction. Subject to Articles III and VI, any Money Market Quote so made
shall be irrevocable except with the written consent of the Agent given on
the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be $5,000,000
or a larger multiple of $1,000,000, (y) may
20
not exceed the principal amount of Money Market Loans for which offers
were requested and (z) may be subject to an aggregate limitation as
to the principal amount of Money Market Loans for which offers being made
by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank
that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be disregarded
by the Agent unless such subsequent Money Market Quote is submitted
21
solely to correct a manifest error in such former Money Market Quote. The
Agent's notice to the Borrower shall specify (A) the aggregate principal amount
of Money Market Loans for which offers have been received for each Interest
Period specified in the related Money Market Quote Request, (B) the
respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for
which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Agent shall
have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the
Borrower shall notify the Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a "Notice of Money Market Borrowing") shall
specify the aggregate principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Money Market Quote in whole
or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money
Market Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related
22
Interest Period, the principal amount of Money Market Loans in respect of
which such offers are accepted shall be allocated by the Agent among such
Banks as nearly as possible (in multiples of $1,000,000, as the Agent may deem
appropriate) in proportion to the aggregate principal amounts of such offers.
Determinations by the Agent of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's share
(if any) of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided
in subsection (c) of this Section) make available its share of such
Borrowing, in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section 9.01. Unless the
Agent determines that any applicable condition specified in Article III has
not been satisfied, the Agent will make the funds so received from the
Banks available to the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by such
Bank to the Agent as provided in subsection (b), or remitted by the
Borrower to the Agent as provided in Section 2.13, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the
Agent such Bank's share of such Borrowing, the Agent may assume that such
Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this Section 2.04
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that
such Bank shall not have so made such share available to the Agent, such
Bank and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower until the
date such
23
amount is repaid to the Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section 2.07 and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank shall repay
to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank shall be
evidenced by a single Note payable to the order of such Bank for the
account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent,
request that its Loans of a particular Type be evidenced by a separate Note
in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely
Loans of the relevant Type. Each reference in this Agreement to the "Note"
of such Bank shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b),
the Agent shall mail such Note to such Bank. Each Bank shall record the
date, amount, Type and maturity of each Loan made by it and the date and
amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that the failure of any Bank to
make any such recordation or endorsement shall not affect the obligations
of the Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach
to and make a part of its Note a continuation of any such schedule as and
when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such
Borrowing.
SECTION 2.07. Interest Rates. (a) Subject to the provisions of
Section 2.12, each Base Rate Loan shall bear
24
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to (i)
if no HLT Status exists on such day, the Base Rate for such day and (ii) if
HLT Status exists on such day, the Base Rate for such day plus 1-1/2%. Such
interest shall be payable quarterly on each Quarterly Date. Any overdue
principal of or interest (including any Additional Interest) on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base
Rate Loans for such day.
(b) Subject to the provisions of Section 2.12, each CD Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the CD
Margin plus the applicable Adjusted CD Rate; provided that if any CD Loan
or any portion thereof shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of less than 30
days, such portion shall bear interest during such Interest Period at the
rate applicable to Base Rate Loans during such period. Such interest shall
be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than 90 days, at intervals of 90 days after the
first day thereof. Any overdue principal of or interest (including any
Additional Interest) on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the CD Margin plus the Adjusted CD Rate applicable
to such Loan and (ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means (i) .525% for any day on which HLT Status does
not exist and (ii) 2.40% for any day on which HLT Status exists.
25
The "Adjusted CD Rate" applicable to any Interest Period means a
rate per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per
annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New
York certificate of deposit dealers of recognized standing for the purchase
at face value from each CD Reference Bank of its certificates of deposit in
an amount comparable to the principal amount of the CD Loan of such CD
Reference Bank to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"Domestic 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 (including without limitation
any basic, supplemental or emergency reserves) for a member bank of the
Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of new non-personal time deposits in dollars in
New York City having a maturity comparable to the related Interest Period
and in an amount of $100,000 or more. The Adjusted CD Rate shall be
adjusted automatically on and as of the effective date of any change in the
Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A"
(or a comparable successor assessment risk classification) within the
meaning of 12 C.F.R. (section mark) 327.3(e) (or any successor
26
provision) to the Federal Deposit Insurance Corporation (or any successor) for
such Corporation's (or such successor's) insuring time deposits at offices of
such institution in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the Assessment
Rate.
(c) Subject to the provisions of Section 2.12, each Euro-Dollar
Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the
sum of the Euro-Dollar Margin plus the applicable Adjusted London Interbank
Offered Rate. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof.
"Euro-Dollar Margin" means (i) .40% for any day on which HLT Status
does not exist and (ii) 2.275% for any day on which HLT Status exists.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing
(i) the applicable London Interbank Offered Rate by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits in dollars
are offered to each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Dollar Loan of such
Euro-Dollar Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in respect of
any other category of liabilities which includes deposits by reference to
which the interest rate on Euro-Dollar Loans is determined or any category
of extensions of credit or other assets which
27
includes loans by a non-United States office of any Bank to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Any overdue principal of or interest (including any Additional
Interest) on any Euro-Dollar Loan shall bear interest, payable on demand,
for each day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal to the sum
of 2% plus the higher of (i) the sum of the Euro-Dollar Margin plus the
Adjusted London Interbank Offered Rate applicable to such Loan and (ii) the
Euro-Dollar Margin plus the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other
period of time not longer than six months as the Agent may select) deposits
in dollars in an amount approximately equal to such overdue payment due to
each of the Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market for the applicable period
determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus
the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market LIBOR
Borrowing were a Committed Euro-Dollar Borrowing) plus (or minus) the Money
Market Margin quoted by the Bank making such Loan in accordance with
Section 2.03. Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money Market Absolute
Rate quoted by the Bank making such Loan in accordance with Section 2.03.
Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest,
payable on demand, for each day until
28
paid at a rate per annum equal to the sum of 2% plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and
the participating Banks by telex or cable of each rate of interest so
determined, and its determination thereof shall be conclusive in the
absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference
Bank does not furnish a timely quotation, the Agent shall determine the
relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.08. Facility Fees. The Borrower shall pay to the Agent
for the account of the Banks ratably in proportion to their Commitments a
facility fee at a rate per annum equal to (i) .12% if the Applicable Ratio
as of the last day of the Relevant Quarter was less than 35%, (ii) .15% if
the Applicable Ratio as of the last day of the Relevant Quarter was equal
to or greater than 35% and less than 50%, and (iii) .20% if the Applicable
Ratio as of the last day of the Relevant Quarter was equal to or greater
than 50%. For purposes of determining the facility fee pursuant hereto, if
the Borrower shall not have delivered to the Banks the financial statements
for the Relevant Quarter, the Applicable Ratio will be deemed to be equal
to 50%. Such facility fee shall accrue (i) from and including the
Effective Date to but excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on the daily aggregate
amount of the Commitments (whether used or unused) and (ii) from and
including the Termination Date or such earlier date of termination to but
excluding the date the Loans shall be repaid in their entirety, on the
daily aggregate outstanding principal amount of the Loans. Such facility
fee shall be payable quarterly on each Quarterly Date, commencing December
31, 1994 and upon the date of termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their
entirety).
SECTION 2.09. Optional Termination or Reduction of Commitments.
The Borrower may, upon at least three Domestic Business Days' notice to the
Agent, terminate at any time, or proportionately reduce from time to time
by an aggregate amount of $5,000,000 or any larger multiple of
29
$1,000,000, the aggregate amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans.
SECTION 2.10. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date, and any Loans then
outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.11. Optional Prepayments. (a) The Borrower may, upon
at least one Domestic Business Day's notice to the Agent, prepay any Base
Rate Borrowing (or any Money Market Borrowing bearing interest at the Base
Rate pursuant to Section 8.01(a)) in whole at any time, or from time to
time in part in amounts aggregating $1,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing.
(b) Except as provided in Sections 8.02 and 8.03(c), the Borrower
may not prepay all or any portion of the principal amount of any Fixed Rate
Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such
notice shall not thereafter be revocable by the Borrower.
SECTION 2.12. Additional Interest. (a) Promptly after the end of
each fiscal quarter of the Borrower and on the Termination Date (or any
earlier date on which the Commitments shall have been terminated in their
entirety and any later date on which all outstanding Committed Loans shall
have been repaid in their entirety), the Agent shall give notice to the
Borrower of the Additional Interest on the Committed Loans of each Type for
such fiscal quarter or for the portion of the current fiscal quarter ending
on the Termination Date (or such earlier or later date, as the case may
be), as the case may be.
(b) No later than the fifth Domestic Business Day after the Agent
gives notice pursuant to subsection (a) above, the Borrower shall pay to
the Agent (for the accounts of the several Banks which had Committed Loans
outstanding during the relevant fiscal quarter or part thereof) the
Additional Interest on such Loans specified in such notice.
30
(c) The Agent shall (i) calculate the Additional Interest on
Committed Loans of each Type and (ii) shall determine each Bank's share of
such Additional Interest based on such Bank's pro rata share of the average
daily amount of Committed Loans of such Type outstanding during the fiscal
quarter or part thereof with respect to which such Additional Interest is
payable. Each such calculation and determination shall be conclusive in
the absence of manifest error.
SECTION 2.13. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of
facility fees hereunder, not later than 12:00 Noon (New York City time) on
the date when due, in Federal or other funds immediately available in New
York City, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks. Whenever any
payment of principal of, or interest on, the Domestic Loans or of facility
fees shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day. If the date
for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that
the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent that the Borrower shall not have so made such
payment, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from
the date such amount is distributed to such Bank until the date such
31
Bank repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment
of principal with respect to any Fixed Rate Loan (pursuant to Article VI or
VIII or otherwise) on any day other than the last day of the Interest
Period applicable thereto, or the end of an applicable period fixed
pursuant to Section 2.07(d), or if the Borrower fails to borrow any Fixed
Rate Loans after notice has been given to any Bank in accordance with
Section 2.04(a), the Borrower shall reimburse each Bank within 15 days
after demand for any resulting loss or expense incurred by it (or by an
existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow, provided that such Bank
shall have delivered to the Borrower a certificate as to the amount of such
loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest (including without limitation Additional Interest) and fees shall
be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. Withholding Tax Exemption. At least five Domestic
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated
under the laws of the United States of America or a state thereof agrees
that it will deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Bank is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Bank which so
delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the
Agent, in each case
32
certifying that such Bank is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent
such Bank from duly completing and delivering any such form with respect to
it and such Bank advises the Borrower and the Agent that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Amended Agreement shall become
effective on the date that each of the following conditions shall have been
satisfied (or waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex, telecopy or other written
confirmation from such party of execution of a counterpart hereof by
such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note dated on or before the Effective Date complying with the
provisions of Section 2.05;
(c) receipt by the Agent of an opinion of Neil W. Koonce, General
Counsel for the Borrower, substantially in the form of Exhibit E hereto,
and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the form of Exhibit F
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
33
(e) receipt by the Agent on the Effective Date of all amounts
payable under Section 9.03 of which the Borrower shall have notice on
such date; and
(f) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Borrower and its Subsidiaries,
the corporate authority for and the validity of this Amended Agreement
and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Agent;
provided that this Amended Agreement shall not become effective or be
binding on any party hereto unless all of the foregoing conditions are
satisfied not later than November 30, 1994.
On the Effective Date the Original Agreement will be automatically
amended and restated in its entirety to read as set forth herein. On and
after the Effective Date the rights and obligations of the parties hereto
shall be governed by this Amended Agreement; provided that rights and
obligations of the parties hereto with respect to the period prior to the
Effective Date shall continue to be governed by the provisions of the
Original Agreement. The Notes delivered to each Bank under the Original
Agreement shall become void on the Effective Date and, upon receiving its
new Notes delivered pursuant to clause (b) of this Section 3.01, each Bank
will cancel its original Notes and return them to the Borrower. No failure
of a Bank so to cancel and return its original Note shall affect the
validity of its new Notes. The Agent shall promptly notify the Borrower
and the Banks of the effectiveness of this Amended Agreement, and such
notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. Transitional Provisions. (a) Each Committed Loan
outstanding under the Original Agreement on the Effective Date shall mature
on the last day of the then current Interest Period applicable thereto
under the Original Agreement.
(b) The interest rates determined in accordance with Section 2.07
of this Amended Agreement shall be effective on the Effective Date;
provided that, (i) the interest rate applicable to each Euro-Dollar Loan
outstanding on the Effective Date for the then current Interest Period
applicable thereto shall be the rate per annum equal to the sum of the
Euro-Dollar Margin (as defined in this Amended Agreement) plus the Adjusted
London Interbank Offered Rate applicable to such Loan (as determined
pursuant to Section 2.05 of the Original
34
Agreement) and (ii) the interest rate applicable to each CD Loan outstanding
on the Effective Date for the then current Interest Period applicable thereto
shall be the rate per annum equal to the sum of the CD Margin (as defined in
this Amended Agreement) plus the Adjusted CD Rate applicable to such Loan (as
determined pursuant to Section 2.05 of the Original Agreement).
(c) In addition, the Additional Interest on the Committed Loans of
each Type outstanding under the Original Agreement on the Effective Date to
be paid for any fiscal quarter of the Borrower ended after the Effective
Date shall be determined in accordance with the provisions of this Amended
Agreement.
SECTION 3.03. Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of notice of such Borrowing as required
by Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(d) the fact that the representations and warranties of the
Borrower contained in this Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set forth in Sections
4.04(c) and 4.05 as to any matter which has theretofore been disclosed
in writing by the Borrower to the Banks) shall be true on and as of the
date of such Borrowing; and
(e) the fact that the Adjusted Debt to Capital Ratio as of the
date of such Borrowing, after giving effect thereto, shall not exceed
61%;
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts
specified in clauses (b), (c), (d), and (e) of this Section.
35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the Borrower
and its Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, and is duly qualified as a foreign corporation in good
standing in each jurisdiction where it is required by applicable law to be
so qualified and the failure so to qualify or be in good standing would
have a material adverse effect on the business, financial condition or
operations of the Borrower and its Subsidiaries, taken as a whole.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the articles of
incorporation or by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or
result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid
and binding agreement of the Borrower and the Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 29, 1993 and the related
consolidated statements of operations, stockholders' equity and cash flows
for the fiscal year then ended, reported on by McGladrey & Pullen and set
forth in the Borrower's 1993 Form 10-K, a copy of which has been delivered
to each of the Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the
36
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of June 29, 1994 and the related unaudited
consolidated statements of operations, stockholders' equity and cash flows
for the three months then ended, set forth in the Borrower's Second Quarter
10-Q, a copy of which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting principles
applied on a basis consistent with the financial statements referred to in
subsection (a) of this Section, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such six-month period
(subject to normal year-end adjustments).
(c) Since June 29, 1994 there has been no material adverse change
in the business, financial position, results of operations or prospects of
the Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Except as set forth in the Borrower's
Second Quarter 10-Q, there is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and its Consolidated
Subsidiaries or which in any manner draws into question the validity of
this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and each Plan
is being administered in all material respects in compliance with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the
posting of a bond or
37
other security under ERISA or the Internal Revenue
Code or (iii) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of
its business, the Borrower conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the
Borrower and its Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license,
permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction
in the level of or change in the nature of operations conducted thereat,
any costs or liabilities in connection with off-site disposal of wastes or
Hazardous Substances and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the
basis of this review, the Borrower has reasonably concluded that such
associated liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of
the Borrower and its Subsidiaries have been examined and closed through the
fiscal year ended December 29, 1991. The Borrower and its Subsidiaries
have filed all United States Federal income tax returns and all other
material tax returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower or any Subsidiary. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
SECTION 4.09. Compliance with Laws. Each of the Borrower and its
Subsidiaries is in compliance with all applicable laws, ordinances, rules,
regulations and requirements of governmental authorities (including,
without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) other than such laws, ordinances,
38
rules, regulations or requirements (i) the validity or applicability of which
the Borrower or such Subsidiary is contesting in good faith by appropriate
proceedings diligently conducted or (ii) the failure to comply with which
cannot reasonably be expected to have consequences which would materially
and adversely affect the business, consolidated financial position,
consolidated results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.10. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
SECTION 4.11. Title to Properties. The Borrower or a Subsidiary
has good and marketable title to each of the material properties and assets
reflected in the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries delivered pursuant to Section 4.04(b), or
thereafter acquired, other than properties and assets disposed of in the
ordinary course of business since the date of such balance sheet, free and
clear of any Lien other than Liens permitted by Section 5.14.
SECTION 4.12. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is,
and all such information hereafter furnished by the Borrower to the Agent
or any Bank will be, true and accurate in all material respects on the date
as of which such information is stated or certified. The Borrower has
disclosed to the Banks in writing any and all facts which materially and
adversely affect or may affect (to the extent the Borrower can now
reasonably foresee), the business, operations or financial condition of the
Borrower and its Consolidated Subsidiaries, taken as a whole, or the
ability of the Borrower to perform its obligations under this Agreement.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will mail to each of the
Banks:
39
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of operations,
stockholders' equity and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal
year, all reported on in accordance with applicable rules and
regulations of the Securities and Exchange Commission by McGladrey &
Pullen or other independent public auditors of nationally recognized
standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of operations, stockholders' equity and cash
flows for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, preparation in accordance with generally accepted
accounting principles (subject to normal year-end adjustments) and
consistency by the chief financial officer or the chief accounting
officer of the Borrower;
(c) not later than the fifteenth day of each fiscal year of the
Borrower, a forecasted consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at the end of such fiscal year and as
at the end of each of the four fiscal quarters constituting such fiscal
year and the related consolidated budget and statements of forecasted
income, forecasted stockholders' equity and forecasted cash flows for
each of such fiscal quarters and for the portions of such fiscal year
then ending, and, as soon as available, any materially adverse revisions
of such statements, all such statements to be based, and to be certified
by the chief financial officer or the chief accounting officer of the
Borrower as being based, on the Borrower's reasonable estimates at the
time, and to be in reasonable detail and substantially in the form
delivered to the Banks prior to the date hereof, with such changes as
the Required Banks may approve;
40
(d) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish (x) whether the Borrower was in compliance with
the requirements of Sections 5.08 to 5.14, inclusive, on the date of
such financial statements and (y) the Applicable Ratio as of the date of
such financial statements, (ii) setting forth the Outstanding
Receivables Amount as of the date of such financial statements and (iii)
stating whether any Default exists on the date of such certificate and,
if any Default then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(e) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public auditors which reported on such statements (i)
whether anything has come to their attention to cause them to believe
that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (d) above;
(f) within five days after any Responsible Officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer, the chief accounting
officer, the treasurer or the controller of the Borrower setting forth
the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K,
10-Q and 8-K (or their equivalents) which the Borrower shall have filed
with the Securities and Exchange Commission;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of
41
ERISA) with respect to any Plan with Unfunded
Liabilities at such time which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from
the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c)
of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
setting forth details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(j) within 15 days after June 30 of every year and promptly after
any material change to the insurance coverage of the Borrower and its
Subsidiaries, a schedule setting forth the amounts of the insurance
coverage of the Borrower and its Subsidiaries and the risks insured
against, in substantially the detail set forth with respect to the date
of the Original Agreement in the Disclosure Schedule; and
(k) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as
the Agent, at the request of any Bank, may reasonably request, as soon
as reasonably practicable after such request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each
42
Subsidiary to pay and discharge, at or before maturity (or, in
the case of ad valorem taxes, on or before the date on which
such taxes are required to be paid pursuant to applicable law),
all their respective obligations and liabilities, including, without
limitation, tax liabilities, except where the same may be contested in good
faith by appropriate proceedings, and except for liabilities which are not
material to the financial position, results of operations or prospects of
the Borrower and its Consolidated Subsidiaries, considered as a whole, and
will maintain, and will cause each Subsidiary to maintain, in accordance
with generally accepted accounting principles, appropriate reserves for the
accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance. (a) The
Borrower will keep, and will cause each Subsidiary to keep, all material
property used and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) The Borrower will maintain, and will cause each Subsidiary to
maintain (either in the name of the Borrower or in such Subsidiary's own
name), insurance with financially sound and reputable insurers on all
property, in such amount and covering such risks, as are adequate and
reasonable for the businesses in which the Borrower is engaged.
SECTION 5.04. Conduct of Business and Maintenance of Existence.
The Borrower will continue, and will cause each Subsidiary to continue, to
engage in business of the same general type as now conducted by the
Borrower and its Subsidiaries, and will preserve, renew and keep in full
force and effect, and will, except as permitted under Section 5.15, cause
each Subsidiary to preserve, renew and keep in full force and effect, their
respective corporate existences and their respective material rights,
privileges and franchises necessary or desirable in the normal conduct of
their respective businesses.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, with all applicable laws, ordinances,
rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules
and regulations thereunder) except where (i) the necessity of compliance
therewith is contested in good faith by appropriate proceedings diligently
conducted or (ii) failure to comply with such law, ordinance, rule,
regulation or requirement cannot reasonably be expected to have
consequences which would materially and adversely affect the
43
business, consolidated financial position, consolidated results of operations
or prospects of the Borrower and its Consolidated Subsidiaries, taken as a
whole.
SECTION 5.06. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities;
and will permit, and will cause each Subsidiary to permit, representatives
of any Bank at such Bank's expense to visit and inspect any of their
respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often
as may reasonably be desired.
SECTION 5.07. Transactions with Affiliates. The Borrower will
not, and will not permit any Subsidiary to, engage in any transaction
directly or indirectly with or for the account or benefit of any Affiliate
except that:
(a) the Borrower and any Subsidiary may make any Investment
permitted under Section 5.12;
(b) the Borrower may make any Restricted Payment permitted under
Section 5.13;
(c) the Borrower and any Subsidiary may (i) pay reasonable
compensation, including, but not limited to, stock options and other
employee benefits, which has been approved by the Board of Directors of
the Borrower or any committee thereof to any Affiliate who is an
officer, director or employee of the Borrower or any Subsidiary in such
capacity for services rendered and (ii) afford miscellaneous benefits
without approval by the Board of Directors of the Borrower to any such
Affiliate who is an officer, director or employee with an aggregate fair
value for each such Person in any fiscal year not exceeding $25,000;
(d) the Borrower and any Subsidiary may in the ordinary course of
their respective businesses sell assets or provide services to, and
purchase assets or services from, any Affiliate on terms which the Board
of Directors of the Borrower has determined are no less favorable to the
Borrower or such Subsidiary than those available from Persons who are
not Affiliates; and
44
(e) the Borrower may perform its obligations under the Registration
Rights Agreement.
SECTION 5.08. Debt. (a) The Adjusted Debt to Capital Ratio on the
last day of any fiscal quarter of the Borrower ended after the Effective
Date will not exceed 61%.
(b) The Borrower will not permit any Subsidiary to incur,
Guarantee, assume, issue or at any time be liable with respect to any Debt
except that Cornwallis may incur Cornwallis Debt in an aggregate principal
amount outstanding at any time not to exceed $15,000,000.
SECTION 5.09. Contingent Obligations. The Borrower will not, and
will not permit any Subsidiary to, incur, create, assume, make or at any
time be liable with respect to any Contingent Obligation other than (i)
Contingent Reimbursement Obligations of the Borrower in respect of letters
of credit issued in connection with the Elmore Litigation in an aggregate
amount not to exceed $10,000,000 at any time, (ii) other Contingent
Reimbursement Obligations of the Borrower incurred in the ordinary course
of its business, in an aggregate amount not to exceed $8,000,000 at any
time and (iii) Contingent Obligations of the Borrower in respect of
Cornwallis Debt in an aggregate amount not exceeding at any time
$7,500,000.
SECTION 5.10. Debt Ratio. As of the last day of each fiscal
quarter ended after the Effective Date, the percentage of Adjusted Cash
Flow for the period of four consecutive fiscal quarters then ended to Total
Consolidated Debt as of such day will not be less than 26%.
SECTION 5.11. Interest Coverage Ratio. As of the last day of each
fiscal quarter ended after the Effective Date, the ratio of EBIT to
Consolidated Interest Expense for the period of four consecutive fiscal
quarters then ended will not be less than 2.3:1.
SECTION 5.12. Investments. Neither the Borrower nor any
Consolidated Subsidiary will make or acquire any Investment in any Person
other than:
(a) Temporary Cash Investments;
(b) Advances by the Borrower or a Subsidiary to officers,
directors and employees for reasonable moving expenses and business
expenses incurred in the ordinary course of business of the Borrower or
any Subsidiary and consistent with past practice; and
45
(c) other Investments by the Borrower not to exceed in the
aggregate at any time 20% of Total Capitalization at such time.
SECTION 5.13. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except Liens existing on the date hereof
and set forth on the Disclosure Schedule and:
(a) Liens securing Debt incurred in connection with the issuance of
industrial revenue bonds in an aggregate principal amount outstanding at
any time not to exceed $10,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation
of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with
or within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower or
a Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not
increased and is not secured by any additional assets;
(g) any Lien for ad valorem taxes not overdue;
(h) Liens arising in the ordinary course of its business or by
operation of law which (i) do not secure Debt, (ii) do not secure any
obligation in an amount exceeding $5,000,000 or any obligation that is
overdue or in default and (iii) do not in the aggregate materially
detract from the value of the assets of the Borrower and its
Subsidiaries, taken as a whole, or
46
materially impair the use thereof in the operation of its business;
(i) Liens on real estate held for development and/or sale by
Cornwallis in the ordinary course of its business securing Cornwallis
Debt permitted under Section 5.08(b);
(j) escrow arrangements existing on the date hereof pursuant to
which cash is held in escrow to secure the Borrower's liabilities in
connection with the Elmore Litigation; provided that at no time will the
aggregate amount of such cash exceed (i) $10,000,000, minus (ii) the
aggregate amount of all Contingent Reimbursement Obligations of the
Borrower in respect of outstanding letters of credit or similar
instruments permitted under clause (i) of Section 5.09;
(k) Liens arising in respect of the Elmore Litigation during any
period in which the Borrower shall in good faith be prosecuting an
appeal by appropriate proceedings diligently conducted and appropriate
escrow arrangements or bonds shall have been made; and
(l) Liens on accounts receivable of the Borrower pursuant to the
Receivables Purchase Agreement.
SECTION 5.14. Consolidations, Mergers and Sales of Assets. The
Borrower will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or any
substantial part of the assets of the Borrower and its Subsidiaries, taken
as a whole, to any other Person; provided that the Borrower may sell
accounts receivable pursuant to the terms of the Receivables Purchase
Agreement; and provided further that the Borrower may merge with another
Person if (A) the Borrower is the corporation surviving such merger and (B)
immediately after giving effect to such merger, no Default shall have
occurred and be continuing.
SECTION 5.15. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrower for general corporate
purposes. None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of buying or
carrying any "margin stock" within the meaning of Regulation U.
47
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of or
interest (including without limitation, any Additional Interest) on any
Loan, any fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.15, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 10 days after written notice thereof has
been given to the Borrower by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by the Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or
deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Debt when due or within any applicable grace
period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with
the giving of notice or lapse of time or both, would enable) the holder
of such Debt or any Person acting on such holder's behalf to accelerate
the maturity thereof, except for Debt in respect of industrial revenue
bonds that is accelerated, or with the giving of notice or lapse of time
or both may be accelerated, by reason of changes in tax laws or any
interpretation thereof;
(g) the Borrower or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee,
48
receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 60 days; or an order for relief shall be
entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $1,000,000;
(j) a judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a
period of 30 days;
49
(k) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of
35% or more of the outstanding shares of common stock of the Borrower;
or, at any time during any period of twelve consecutive calendar months,
a majority of the Board of Directors of the Borrower shall not consist
of individuals who were either directors of the Borrower on the first
day of such period ("original directors") or appointed as or nominated
to be directors by individuals including a majority of those of the
original directors who have not, prior to such appointment or
nomination, resigned by reason of disability or died; or
(l) a Termination Event, as defined in the Existing Receivables
Purchase Agreement, shall occur thereunder, or any analogous event shall
occur in any other Receivables Purchase Agreement;
then, and in every such event, the Agent shall (i) if requested by Banks
having more than 50% in aggregate amount of the Commitments, by notice to
the Borrower terminate the Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding Notes evidencing more than 50% in
aggregate principal amount of the Loans, by notice to the Borrower declare
the Notes (together with accrued interest thereon) to be, and the Notes
shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower; provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to the Borrower, without
any notice to the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to
the Borrower under Section 6.01(c) promptly upon being requested to do so
by any Bank and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the
Notes as are delegated to the Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company
of New York shall have the same rights and powers under this Agreement as
any other Bank and may exercise or refrain from exercising the same as
though it were not the Agent, and Morgan Guaranty Trust Company of New York
and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article
VI.
SECTION 7.04. Consultation with Experts. The Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction
of any condition specified in Article III, except receipt of items required
to be
51
delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability
by acting in reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire, telex, facsimile transmission or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and
their respective directors, officers, agents and employees (to the extent
not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with
this Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time
by giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America
or of any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of its appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the
52
provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall pay to the Agent
for its own account fees in the amounts and at the times previously agreed
upon between the Borrower and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Fixed Rate Borrowing:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank Offered Rate, as the
case may be, as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding their CD Loans or Euro-Dollar
Loans, as the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended. Unless the Borrower notifies the Agent at
least two Domestic Business Day before the date of any Fixed Rate Borrowing
for which a Notice of Borrowing has previously been given that it elects
not to borrow on such date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base Rate Borrowing
and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR Borrowing,
the Money Market LIBOR Loans comprising such Borrowing shall bear interest
for each day from and including the first day to but excluding the last day
of the Interest Period applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of the
Original Agreement, the adoption of any
53
applicable law, rule or regulation,
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 any Bank (or its Euro-Dollar Lending Office) with
any request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the Borrower and the Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Bank
shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. If such Bank shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each such Euro-Dollar Loan, together with accrued
interest thereon. Concurrently with prepaying each such Euro-Dollar Loan,
the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks),
and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or
after (x) the date of the Original Agreement, in the case of any Committed
Loan or any obligation to make Committed Loans or (y) the date of the
related Money Market Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, 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 any Bank (or its
Applicable Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its Fixed Rate Loans, its
Note or its obligation to make Fixed Rate Loans, or shall change
54
the basis of taxation of payments to any Bank (or its Applicable Lending
Office) of the principal of or interest on its Fixed Rate Loans or any
other amounts due under this Agreement in respect of its Fixed Rate
Loans or its obligation to make Fixed Rate Loans (except for changes in
the rate of tax on the overall net income of such Bank or its Applicable
Lending Office imposed by the jurisdiction in which such Bank's
principal executive office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding (A) with respect
to any CD Loan any such requirement included in an applicable Domestic
Reserve Percentage and (B) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate)
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office)
or on the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans, its
Note or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Applicable Lending Office) of making or maintaining any Fixed Rate
Loan, or to reduce the amount of any sum received or receivable by such
Bank (or its Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date of the
Original Agreement, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank
55
or comparable agency, has or would have the effect of reducing
the rate of return on capital of such Bank (or its Parent) as a consequence
of such Bank's obligations hereunder to a level below that which such Bank
(or its Parent) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then
from time to time, within 15 days after demand by such Bank (with a copy to
the Agent), the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. If any Bank demands compensation under Section
8.03(a), the Borrower may at any time, upon at least five Euro-Dollar
Business Days' prior notice to such Bank through the Agent, prepay in full
the then outstanding CD Loans or Euro-Dollar Loans, as the case may be, of
such Bank, together with accrued interest thereon to the date of
prepayment. Concurrently with prepaying each such Fixed Rate Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from
such Bank (on which interest and principal shall be payable
contemporaneously with the related CD Loans or Euro-Dollar Loans, as the
case may be, of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
56
(a) all Loans which would otherwise be made by such Bank as CD
Loans or Euro-Dollar Loans, as the case may be, shall be made instead as
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the other Banks),
and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case
may be, has been repaid, all payments of principal which would otherwise
be applied to repay such Fixed Rate Loans shall be applied to repay its
Base Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. (a) Except as provided in subsection (b)
of this Section, all notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in
the case of the Borrower or the Agent, at its address or telex number set
forth on the signature pages hereof, (y) in the case of any Bank, at its
address or telex number set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address or telex number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section and the appropriate answerback is
received, (ii) if given by mail in connection with Section 2.13, 6.01,
6.02, 8.01, 8.03 or 9.03, when received, (iii) if given by mail in
connection with any other Section of this Agreement, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered
at the address specified in this Section; provided that notices to the
Agent under Article II or Article VIII shall not be effective until
received.
(b) The Borrower hereby authorizes (i) the Agent to accept
telephonic Notices of Borrowing to the Agent made by any Person or Persons
whom the Agent in good faith believes to be an authorized officer acting on
behalf of the Borrower and (ii) each of the Banks to extend Loans based on
such Notices of Borrowing. The Borrower agrees to confirm promptly in
writing (including bank wire, telefax, facsimile transmission or similar
writing) to the Agent any telephonic Notice of Borrowing. If the written
confirmation differs in
57
any material respect from the action taken by the
Agent, the records of the Agent shall govern absent manifest error. The
Borrower hereby agrees to indemnify and hold the Agent and the Banks
harmless from any loss or expense they might incur in acting in good faith
on the request of any unauthorized Person.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a)
The Borrower shall pay (i) all reasonable out-of-pocket expenses of the
Agent, including reasonable fees and disbursements of special counsel for
the Agent, in connection with the preparation of this Agreement, any waiver
or consent hereunder or any amendment hereof, except for any such waiver,
consent or amendment given or made expressly and solely at the written
request of the Banks, or any Default or alleged Default hereunder and (ii)
if an Event of Default occurs, all out-of-pocket expenses incurred by the
Agent and each Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom. The
Borrower shall indemnify each Bank against any transfer taxes, documentary
taxes, assessments or charges made by any governmental authority by reason
of the execution and delivery of this Agreement or the Notes.
(b) The Borrower agrees to indemnify each Bank and hold each Bank
harmless from and against any and all liabilities, losses, damages, costs
(including without limitation, settlement costs) and expenses of any kind,
including, without limitation, the reasonable fees and disbursements of
counsel (including but not limited to allocated time and other reasonable
charges of attorneys who are employees of such Bank) which may be incurred
by any Bank (or by the Agent in connection with its actions as Agent
hereunder) in connection with any investigative, administrative or judicial
proceeding (whether or not such Bank shall be designated a party thereto)
relating to or arising out of this Agreement or any actual or proposed use
of proceeds of Loans hereunder; provided that no Bank shall have the right
to be indemnified hereunder for its own gross
58
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the
Banks shall be shared by the Banks pro rata; provided that nothing in this
Section shall impair the right of any Bank to exercise any right of set-off
or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes. The Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a
participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the Commitment of
any Bank (except for a ratable decrease in the Commitments of all Banks) or
subject any Bank to any additional obligation, (ii) reduce the principal of
or rate of interest (including without limitation, the rate of Additional
Interest) on any Loan or any fees hereunder, (iii) postpone the date fixed
for any payment of principal of or interest (including without limitation,
any Additional Interest) on any Loan or any fees hereunder or for any
reduction or termination of any Commitment, or (iv) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of
this Agreement.
59
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the
Borrower may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not upon
notice to the Borrower and the Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the
Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause
(i), (ii), or (iii) of Section 9.05 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in
its participation agreement, be entitled to the benefits of Article VIII
with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of
its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit G
hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent (which consent shall not be unreasonably
withheld) of the Borrower and the Agent; provided that (A) if an Assignee
is an affiliate of such transferor Bank or a Bank, no such consent shall be
required, but the transferor Bank agrees promptly upon such assignment to
notify the Borrower thereof, (B) each assignment hereunder to any Person
other than a Bank shall be in an amount of at least $5,000,000
60
unless such assignment constitutes an assignment of all of the transferor
Bank's Commitment and Loans hereunder and (C) such assignment may, but need not,
include rights of the transferor Bank in respect of outstanding Money
Market Loans. Upon execution and delivery of such instrument and payment
by such Assignee to such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such Assignee, such Assignee
shall be a Bank party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by
any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to the Assignee. In connection with any such assignment,
the transferor Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $2,000. If the Assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 2.16.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No
such assignment shall release the transferor Bank from its obligations
hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03
than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02 or 8.03
requiring such Bank to designate a different Applicable Lending Office
under certain circumstances or at a time when the circumstances giving rise
to such greater payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for in this Agreement.
61
SECTION 9.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance
with the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in
New York City for purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 9.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof.
SECTION 9.10. Confidentiality. The Agent and each Bank agree that
they will maintain the confidentiality of, and will not use for any
commercial purpose (other than exercising its rights and enforcing its
remedies hereunder and under its Note), any written or oral information
provided under this Agreement by or on behalf of the Borrower that has been
identified by its source as confidential, including any information
provided pursuant to Section 5.06 (hereinafter collectively called
"Confidential Information"), subject to the Agent's and each Bank's (a)
obligation to disclose any such Confidential Information pursuant to a
request or order under applicable laws and regulations or pursuant to a
subpoena or other legal process, (b) right to disclose any such
Confidential Information to its bank examiners, affiliates, auditors,
counsel and other professional advisors and to other Banks, (c) right to
disclose any such Confidential Information in connection with any
litigation or dispute involving the Banks and the Borrower or any of its
Subsidiaries and affiliates and (d) right to provide such information to
participants, prospective participants or prospective assignees pursuant to
Section 9.06 if such participant, prospective participant or prospective
assignee agrees to maintain the confidentiality of such information on
terms substantially similar to those of this Section as if it were a "Bank"
party hereto. Notwithstanding the foregoing, any such information supplied
to a Bank, participant,
62
prospective participant or prospective assignee under this
Agreement shall cease to be Confidential Information if it is or
becomes known to such Person by other than unauthorized disclosure, or if
it is, at the time of disclosure, or becomes a matter of public knowledge.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
63
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
CONE MILLS CORPORATION
By /s/ John L. Bakane
Title: Vice President and Chief
Financial Officer
1201 Maple Street
Greensboro, North Carolina 27405
Telex number: 5109251120
Telecopy number: (910) 379-6287
Attention: David E. Bray
Treasurer
64
Commitments
$20,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ David B. Common
Title: Vice President
$20,000,000 FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By /s/ Kent L. Phillips
Title: Vice President
$20,000,000 NATIONSBANK OF NORTH
CAROLINA, N.A.
By /s/ Alison H. Mewborne
Title: Vice President
$20,000,000 WACHOVIA BANK OF NORTH
CAROLINA, N.A.
By /s/ Charles D. Barham, III
Title: Corporate Banking Officer
_________________
Total Commitments
$80,000,000
=================
65
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ David B. Common
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Telex number: 177615
Attention:
65
EXHIBIT A
NOTE
New York, New York
, 1994
For value received, Cone Mills Corporation, a North Carolina
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below on the last day of the Interest
Period relating to such Loan. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal
or other immediately available funds at the office of Morgan Guaranty Trust
Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the Types and maturities thereof and
all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank
to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Amended and
Restated Credit Agreement dated as of November 18, 1994 among the Borrower,
the banks listed on the signature pages thereof and Morgan Guaranty Trust
Company of New York, as Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
CONE MILLS CORPORATION
By________________________
Title:
2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
3
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: Cone Mills Corporation
Re: Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of November 18, 1994 among the
Borrower, the Banks listed on the signature pages
thereof and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed
Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount2 Interest Period3
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
2Amount must be $5,000,000 or a larger multiple of
$1,000,000.
3Not less than one month (LIBOR Auction) or not less
than 7 days nor more than 180 days (Absolute Rate Auction),
subject to the provisions of the definition of Interest
Period.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
CONE MILLS CORPORATION
By________________________
Title:
2
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Cone Mills
Corporation (the "Borrower")
Pursuant to Section 2.03 of the Amended and Restated Credit
Agreement dated as of November 18, 1994 among the Borrower, the Banks
listed on the signature pages thereof and the undersigned, as Agent, we are
pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.]
[9:30 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Agent
Re: Money Market Quote to Cone Mills Corporation (the
"Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed
$____________.]**
__________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids
must be made for $5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Amended
and Restated Credit Agreement dated as of November 18, 1994 among the
Borrower, the Banks listed on the signature pages thereof and yourselves,
as Agent, irrevocably obligates us to make the Money Market Loan(s) for
which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
*** Not less than one month or not less than 7 days or more than 180 days,
as specified in the related Invitation. No more than five bids are
permitted for each Interest Period.
**** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%)
2
EXHIBIT E
OPINION OF GENERAL
COUNSEL OF THE BORROWER
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am the General Counsel of Cone Mills Corporation, a North
Carolina corporation (the "Borrower"), and have acted as counsel for the
Borrower in connection with the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of November 18, 1994 among the Borrower, the
banks listed on the signature pages thereof and Morgan Guaranty Trust
Company of New York, as Agent. Terms defined in the Credit Agreement are
used herein as therein defined. This opinion is being rendered to you at
the request of my client pursuant to Section 3.01(c) of the Credit
Agreement.
In connection with the preparation of this opinion, I have reviewed
the originals or copies, certified or otherwise identified to my
satisfaction, of the following documents:
(a) The Credit Agreement;
(b) The form of the Notes;
(c) The Articles of Incorporation of the Borrower;
(d) A Certificate of Existence of the Borrower as certified by the
Secretary of State of North Carolina on November 18, 1994;
(e) The bylaws of the Borrower; and
(f) Corporate resolutions of the Borrower, authorizing the
execution, delivery and performance of the Credit Agreement and the
Notes.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals,
the conformity to originals of all documents submitted to me as certified,
photostatic or conformed copies, and the authenticity of the originals of
such documents.
I call your attention to the fact that the Credit Agreement states
that the Credit Agreement and each Note are to be construed in accordance
with and governed by the laws of the State of New York. Please be advised
that I am a member of the bar of the State of North Carolina and do not
purport to be an expert in the laws of any jurisdiction other than the
State of North Carolina and the United States of America. Accordingly,
this opinion is limited in all respects to the laws of the State of North
Carolina and of the United States and, in expressing the opinion set forth
in paragraph 3 hereof, we have assumed without independent investigation
that the laws of the State of New York are substantially identical in all
relevant respects to the laws of the State of North Carolina.
Based solely upon and subject to the foregoing, and the
qualifications and limitations set forth below, it is my opinion that:
1. Each of the Borrower and its Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted, and is duly qualified as a foreign
corporation in good standing in each jurisdiction where it is required by
applicable law to be so qualified and the failure so to qualify or be in
good standing would have a material adverse effect on the business,
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency
or official (other than routine filings after the date hereof with the
Securities and Exchange Commission and with state securities commissions)
and do not contravene, or constitute a default under, any provisions of
applicable law or regulation or of the articles of incorporation or by-laws
of the Borrower or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Borrower
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or result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement
of the Borrower and the Notes constitute valid and binding obligations of
Borrower.
4. Except as set forth in the Borrower's Second Quarter 10-Q,
there is no action, suit or proceeding pending against, or to the best of
my knowledge threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body,
agency or official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business,
consolidated financial position or consolidated results of operations of
the Borrower and its Consolidated Subsidiaries or which in any manner draws
into question the validity of the Credit Agreement or the Notes.
This opinion is solely for the benefit of the Banks and the Agent
in connection with the transactions provided for in or contemplated by the
Credit Agreement. It may not be otherwise distributed or relied upon by
any person or quoted or reproduced, in whole or in part, in any other
document or filed with any government agency without our prior written
consent.
Very truly yours,
3
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of November 18, 1994
among Cone Mills Corporation, a North Carolina corporation (the
"Borrower"), the banks listed on the signature pages thereof (the "Banks")
and Morgan Guaranty Trust Company of New York, as Agent (the "Agent"), and
have acted as special counsel for the Agent for the purpose of rendering
this opinion pursuant to Section 3.01(d) of the Credit Agreement. Terms
defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted
such other investigations of fact and law as we have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
Credit Agreement constitutes a valid and binding agreement of the Borrower
and each Note constitutes a valid and binding obligation of the Borrower,
in each case enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
federal laws of the United States of America. In giving the foregoing
opinion (i) we express
no opinion as to the effect (if any) of any law of
any jurisdiction (except the State of New York) in which any Bank is
located which limits the rate of interest that such Bank may charge or
collect and (ii) we have relied, without independent investigation, as to
all matters relevant to such opinion that are governed by the laws of the
State of North Carolina upon the opinions of Neil Koonce, General Counsel
of the Borrower, dated November 18, 1994, a copy of which has been
delivered to you.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by any other person without our prior written
consent.
Very truly yours,
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EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), CONE MILLS CORPORATION (the
"Borrower") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Amended and Restated Credit Agreement dated as of November
18, 1994 among the Borrower, the Assignor and the other Banks party
thereto, as Banks, and the Agent (as amended, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount
at any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the
"Assigned Amount"), together with a corresponding portion of its
outstanding Committed Loans, and the Assignee proposes to accept assignment
of such rights and assume the corresponding obligations from the Assignor
on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement
to the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to the extent of the
Assigned Amount, including the purchase from the Assignor of the corresponding
portion of the principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and delivery hereof by
the Assignor, the Assignee, the Borrower and the Agent and the payment of
the amounts specified in Section 3 required to be paid on the date hereof
(i) the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee.
The assignment provided for herein shall be without recourse to the
Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds an amount equal to $_________.4 It is
understood that facility fees accrued to the date hereof are for the
account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such
other party's interest therein and shall promptly pay the same to such
other party.
[SECTION 4. Consent of the Borrower and the Agent. This Agreement
is conditioned upon the consent (which shall not be unreasonably withheld)
of the Borrower and the Agent pursuant to Section 9.06(c) of the Credit
Agreement. The execution of this Agreement by the Borrower and the Agent
is evidence of this consent. Pursuant to Section 9.06(c) the Borrower
agrees to execute and deliver a Note payable to the order of the Assignee
to evidence the assignment and assumption provided for herein, and the
Assignor agrees, if the assignment is for all of the
4 Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by
the Assignee, net of any portion of any upfront fee to be
paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically
or by formula rather than as a fixed sum.
2
Assignor's Commitment and Loans, promptly to cancel its Note and return it
to the Borrower.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of the Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit Agreement or any Note.
The Assignee acknowledges that it has, independently and without reliance
on the Assignor, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of
the Borrower.
SECTION 6. Withholding Tax Exemption. If the Assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 2.14 of the Credit
Agreement.
SECTION 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
first above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
CONE MILLS CORPORATION
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
4