(Local Currency-Single Jurisdiction)
ISDA(Registration mark)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of.......................
First Union National Bank of North Carolina and Culp, Inc. have entered
and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement,
which includes the schedule (the "Schedule"), and the documents and
other confirming evidence (each a "Confirmation") exchanged between the
parties confirming those Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 12 and in the Schedule
will have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of this Master
Agreement, the Schedule will prevail. In the event of any inconsistency
between the provisions of any Confirmation and this Master Agreement
(including the Schedule), such Confirmation will prevail for the purpose
of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on
the fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is,
other than by payment), such delivery will be made for receipt on the
due date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject
to (1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
Copyright(Copyright mark) 1992 by International Swap Dealers Association, Inc.
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(b) Change of Account. Either party may change its account for receiving
a payment or delivery by giving notice to the other party at least five
Local Business Days prior to the scheduled date for the payment or
delivery to which such change applies unless such other party gives
timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction.
by each party to the other, then, on such date, each party's obligation
to make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise
have been payable by the other party, replaced by an obligation upon the
party by whom the larger aggregate amount would have been payable to pay
to the other party the excess of the larger aggregate amount over the
smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying
that subparagraph (ii) above will not apply to the Transactions
identified as being subject to the election, together with the starting
date (in which case subparagraph (ii) above will not, or will cease to,
apply to such Transactions from such date). This election may be made
separately for different groups of Transactions and will apply
separately to each pairing of branches or offices through which the
parties make and receive payments or deliveries.
(d) Default Interest; Other Amounts. Prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party that defaults in the performance of any
payment obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the same
currency as such overdue amount, for the period from (and including) the
original due date for payment to (but excluding) the date of actual
payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If,
prior to the occurrence or effective designation of an Early Termination
Date in respect of the relevant Transaction, a party defaults in the
performance of any obligation required to be settled by delivery, it
will compensate the other party on demand if and to the extent provided
for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction
is entered into) that:-
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the
laws of the jurisdiction of its organization or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is a
party, to deliver this Agreement and any other documentation relating
to this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a
party and has taken all necessary action to authorize such execution,
delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment
of any court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or affecting it
or any of its assets;
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(iv) Consents. All governmental and other consents that are required
to have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained and
are in full force and effect and all conditions of any such consents
have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and
any Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur
as a result of its entering into or performing its obligations under
this Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its
ability to perform its obligations under this Agreement or such Credit
Support Document.
(d) Accuracy of Specified Information. All applicable information that
is furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as
of the date of the information, true, accurate and complete in every
material respect.
4. Agreements
Each party agrees with the other that, so long as either party has or
may have any obligation under this Agreement or under any Credit Support
Document to which it is a party:-
(a) Furnish Specified Information. It will deliver to the other party
any forms, documents or certificates specified in the Schedule or any
Confirmation by the date specified in the Schedule or such Confirmation
or, if none is specified, as soon as reasonably practicable.
(b) Maintain Authorizations. It will use all reasonable efforts to
maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by if with respect to
this Agreement or any Credit Support Document to which it is a party and
will use all reasonable efforts to obtain any that may become necessary
in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or
any Specified Entity of such party of any of the following events
constitutes an event of default (an "Event of Default") with respect to
such party:-
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under Section
2(a)(i) or 2(d) required to be made by it if such failure is not
remedied on or before the third Local Business Day after notice of
such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(d) or to give notice of a Termination Event) to be complied with or
performed
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by the party in accordance with this Agreement if such failure is not
remedied on or before the thirtieth day after notice of such failure is
given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
Party to comply with or perform any agreement or obligation to
be complied with or performed by it in accordance with any
Credit Support Document if such failure is
continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of this
Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such
party under each Transaction to which such Credit Support
Document relates without the written consent of the other
party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation made or repeated or deemed
to have been made or repeated by the party or any Credit Support
Provider of such party in this Agreement or any Credit Support
Document proves to have been incorrect or misleading in any material
respect when made or repeated or deemed to have been made or
repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity of
such party (1) defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under,
or an early termination of, that Specified Transaction, (2)
defaults, after giving effect to any applicable notice requirement or
grace period, in making any payment or delivery due on the last
payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues
for at least three Local Business Days if there is no applicable
notice requirement or grace period) or (3) disaffirms, disclaims,
repudiates or rejects, in whole or in part, a Specified Transaction
(or such action is taken by any person or entity appointed or
empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule
as applying to the party, the occurrence or existence of (1) a
default, event of default or other similar condition or event
(however, described) in respect of such party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party under one or more agreements or instruments relating to
Specified indebtedness of any of them (individually or collectively)
in an aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of
being declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable
or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively) in
making one or more payments on the due date thereof in an aggregate
amount of not less than the applicable Threshold Amount under such
agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party;-
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to pay its
debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its
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winding-up or liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding or petition
(A) results in a judgment of insolvency or bankruptcy or the entry of
an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or restrained
in each case within 30 days of the institution or presentation thereof;
(5) has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or
merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee,
custodian or other similar official for it or for all or substantially all
its assets; (7) has a secured party take possession of all or substantially
all its assets or has a distress, execution, attachment, sequestration or
other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains possession, or
any such process is not dismissed, discharged, stayed or restrained, in each
case within 30 days thereafter; (8) causes or is subject to any event with
respect to it which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into,
or transfers all or substantially all its assets to, another entity
and, at the time of such consolidation, amalgamation, merger or transfer: -
(1) the resulting, surviving or trasnferee entity fails to assume all
the obligations of such party or such Credit Support Provider under
this Agreement or any Credit Support Document to which it or its
predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality
if the event is specified in (i) below, and, if specified to be applicable,
a Credit Event Upon Merger if the event is specified pursuant to (ii) below
or an Additional Termination Event if the event is specified pursuant to
(iii) below: -
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court, tribunal
or regulatory authority with competent jurisdiction of any applicable law
after such date, it becomes unlawful (other than as a result of a breach
by the party of Section 4(b)) for such party (which will be the Affected
Party); -
(1) to perform any absolute or contingent obligation to make a payment
or delivery or to receive a payment or delivery in respect of such
Transaction or to comply with any other material provision of this
Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document relating
to such Transaction:
(ii) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the creditworthiness
of the resulting, surviving or transferee entity is materially weaker than
that of X, such Credit Support Provider or such Specified Entity, as the
case may be, immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party); or
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(iii) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the Schedule
or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute
an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions. If,
however, "Automatic Early Termination" is specified in the Schedule as applying
to a party, then an Early Termination Date in respect of all outstanding
Transactions will occur immediately upon the occurrence with respect to such
party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6)
or, to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of
the relevant petition upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous
thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will, promptly
upon becoming aware of it, notify the other party, specifying the nature of
that Termination Event and each Affected Transaction and will also give
such other information about that Termination Event as the other party may
reasonably require.
(ii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) occurs
and there are two Affected Parties, each party will use all reasonable
efforts to reach agreement within 30 days after notice thereof is given
under Section 6(b)(i) on action to avoid that Termination Event.
(iii) Right to Terminate. If:-
(1) an agreement under Section 6(b)(ii) has not been effected with
respect to all Affected Transactions within 30 days after an Affected
Party gives notice under Section 6(b)(i); or
(2) an Illegality other than that referred to in Section 6(b)(ii), a
Credit Event Upon Merger or an Additional Termination Event occurs.
either party in the case of an Illegality, any Affected Party in the case
of an Additional Termination Event if there is more than one Affected Party,
or the party which is not the Affected Party in the case of a Credit Event
Upon Merger of an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing, designate
a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designation an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
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(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments of deliveries under Section 2(a)(i) or 2(d) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in determining
a Market Quotation, the records of the party obtaining such quotation will
be conclusive evidence of the existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment), from
(and including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be
deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination
Date and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default:-
(1) First Method and Market Quotation. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number, of (A) the sum of the Settlement
Amount (determined by the Non-defaulting Party) in respect of the
Terminated Transactions and the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and Market
Quotation apply, an amount will be payable equal to (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect of
the Terminated Transactions and the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party will
pay it to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of the amount to the
Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative
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number, the Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except
that, in either case, references to the Defaulting Party and to the
Non-defaulting Party will be deemed to be references to the Affected
Party and the party which is not the Affected Party, respectively, and,
if Loss applies and fewer than all the Transactions are being
terminated. Loss shall be calculated in respect of all Terminated
Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the
higher Settlement Amount ("X") and the Settlement Amount of the
party with the lower Settlement Amount ("Y") and (b) the Unpaid
Amounts owing to X less (II) the Unpaid Amounts owing to Y: and
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an amount
will be payable equal to one-half of the difference between the Loss
of the party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of the amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Neither this Agreement nor any interest or obligation in or under this
Agreement may be transferred (whether by way of security or otherwise) by
either party without the prior written consent of the other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into; or transfer of all
substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
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8. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by
an exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agrement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
9. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees,
incurred by such other party by reason of the enforcement and protection of its
rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any
Transaction, including, but not limited to, costs of collection.
10. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
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ISDA(Registration mark) 1992
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(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender
and will not be met by a transmission report generated by the sender's
facsimile machine):
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted: or
(v) if sent by electronic messaging system, on the date that electronic
message is received.
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on a
Local Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
11. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York
City, if this Agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of
any court, (iii) relief by way of injunction, order for specific performance
or for recovery of property; (iv) attachment of its assets (whether before
or after judgment) and (v) execution or enforcement of any judgment to which
it or its revenues or assets might otherwise be entitled in any Proceedings in
the courts of any jurisdiction and irrevocably agrees, to the extent permitted
by applicable law, that it will not claim any such immunity in any Proceedings.
12. Definitions
As used in this Agreement:-
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
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ISDA(Registration mark) 1992
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"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, all Transactions affected by the occurrence of
such Termination Event and (b) with respect to any other Termination Event
all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:-
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"consent" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it)
if it were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iii).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"law" includes any treaty, law, rule or regulation and "lawful" and "unlawful"
will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined pursuant
to provisions contained, or incorporated by reference, in this Agreement,
(b) in relation to any other payment, in the place where the relevant account
is located, (c) in relation to any notice or other communication, including
notice contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a notice
contemplated by Section 2(b), in the place where the relevant new account
is to be located and (d) in relation to Section 5(a)(v)(2), in the relevant
locations for performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, an amount that party reasonably
determines in good faith to be its total losses and costs (or gain, in which
case expressed as a negative number) in connection with this Agreement or that
Terminated Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such
party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or related
trading position (or any gain
11
ISDA(Registration mark) 1992
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resulting from any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made (assuming
satisfaction of each applicable condition precedent) on or before the relevant
Early Termination Date and not made, except, so as to avoid duplication, if
Section 6(e)(i)(l) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include
a party's legal fees and out-of-pocket expenses referred to under Section
9. A party will determine its Loss as of the relevant Early Termination
Date, or, if that is not reasonably practicable, as of the earliest date
thereafter as is reasonably practicable. A party may (but need not) determine
its Loss by reference to quotations of relevant rates or prices from one
or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction")
that would have the effect of preserving for such party the economic equivalent
of any payment or delivery (whether the underlying obligation was absolute
or contingent and assuming the satisfaction of each applicable condition
precedent) by the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would but for the
occurrence of the relevant Early Termination Date, have been required
after that date. For this purpose, Unpaid Amounts in respect of the Terminated
Transaction or group of Terminated Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such party and
the Reference Market-maker may, in good faith, agree. The party making the
determination (or its agent) will request each Reference Market-maker to provide
its quotation to the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party is
so obliged, after consultation with the other. If more than three quotations
are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same highest
value or lowest quotations. For this purpose, if more than one quotation has
the same highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it will be deemed
that the Market Quotation in respect of such Terminated Transaction or group
of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof
of evidence of any actual cost) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer
or to make an extension of credit and (b) to the extent practicable, from
among such dealers having an office in the same city.
"Schedule Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention
or withholding or similar right or requirement to which the payer of an
amount under Section 6 is entitled or subject (whether arising under
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ISDA(Registration mark) 1992
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this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:-
(a) the Market Quotations (whether positive or negative) for each Terminated
Transaction or group of Terminated Transactions for which a Market Quotation
is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party of
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency
rate swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions), (b) any
combination of these transactions and (c) any other transaction identified
as a Specified Transaction in this Agreement or the relevant confirmation.
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Event" means an Illegality or, if specified to be applicable, a
Credit Event Upon Merger or an Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof of evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under
Section 2(a)(i) which was (or would have been out for Section 2(a)(iii))
required to be settled by delivery to such party on or prior to such
Early Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market value of that which was
(or would have been) required to be delivered as of the originally scheduled
date for delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency of such amounts, from (and including)
the date such amounts or obligations were or would have been required to have
been paid or performed to (but excluding) such Early Termination Date, at the
Applicable Rate. Such amounts of interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. The fair market
value of any obligation referred to in clause (b) above shall be reasonably
determined
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ISDA(Registration mark) 1992
Second Printing
by the party obligated to make the determined under Section 6(e) or, if each
party is so obligated, it shall be the average of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page
of this document.
First Union National Bank of North Carolina Culp, Inc.
(Name of Party) (Name of Party)
By: /s/ John F. Wheatley By: /s/ Franklin N. Saxon
Name: John F. Wheatley Name: Franklin N. Saxon
Title: Vice President Title: VP & CFO
Date: Date: 4/18/95
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ISDA(Registration mark) 1992
Second Printing
SCHEDULE
to the
Master Agreement
dated as of _____ __, 19__
between
First Union National and Culp, Inc.
Bank of North Carolina ("Party B")
("Party A")
Part 1
Termination Provisions
In this Agreement:
(1) "Specified Entity" means, for the purposes of Section
5(a)(v), (vi) and (vii) and Section 5(b)(ii) of this Agreement,
in the case of Party A, any Affiliate of Party A, and in the case
of Party B, any Affiliate of Party B.
(2) "Specified Transaction" will have the meaning specified in
Section 12 of this Agreement.
(3) The "Cross Default" provisions of Section 5(a)(vi) of this Agreement will
apply to Party A and Party B; provided, however, that clause (2) of such
Section 5(a)(vi) shall be amended to read as follows:
"(2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due
date thereof, or in performing any other delivery obligation
on the date required, in an aggregate amount of not less than
the applicable Threshold Amount (or its U.S. dollar equivalent
in the case of payment or other obligations not denominated in
U.S. dollars or other delivery obligations) under such
agreements or instruments (after giving effect to any applicable
notice requirement or grace period);".
For the purposes of Section 5(a)(vi) of this Agreement:
1
(a) "Specified Indebtedness" means any obligation (whether
present, future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money or relating to the
payment or delivery of funds or other property (including,
without limitation, securities or any form of collateral) it
being understood that, in any event, Specified Indebtedness with
respect to Party B shall include its obligations under the
Amended and Restated Credit Agreement among Culp, Inc. and First
Union Bank of North Carolina as agent for First Union National
Bank of North Carolina and Wachovia Bank of North Carolina, N.A.
as amended from time to time (each as amended or modified, a
"Loan Agreement").
(b) "Threshold Amount" means (A) with respect to Party A
$50,000,000, and (B) with respect to Party B, $100,000; provided
that the Threshold Amount with respect to Party B's obligations
under a Loan Agreement means $0.00.
(4) The "Credit Event Upon Merger" provisions of
Section 5(b)(ii) will apply to Party A and Party B.
(5) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A or Party B.
(6) For the purpose of Section 6(e) of this Agreement, the
Second Method and Market Quotation will apply.
(7) Additional Termination Events will not apply.
(8) Additional Event of Default will apply. The following event
shall constitute additional Event of Default with respect to
Party B:
Breach of Loan Agreement. Failure by Party B to comply with or
perform any agreement or obligation set forth in a Loan Agreement
(after the expiration of any applicable cure period specified
therein) or any representation or warranty made by Party B in any
Loan Agreement shall cease to be accurate and complete in any
material respect, each of which agreements, obligations
representations and warranties is hereby incorporated by
reference as if fully set forth herein and which shall continue
in full force and effect until each of the obligations of Party B
hereunder have been paid in full and this Agreement has been
terminated, notwithstanding the earlier termination of the Loan
Agreement.
(9) Security Agreements. If Party B enters into any pledge or
security agreement, or any similar agreement constituting a
pledge of, or a grant of a security interest in, collateral (each
a "Collateral Agreement") with Party A or any Affiliate of Party
A, in order to secure the obligations of Party B under any Loan
Agreement, and Party A and Party B enter into a Transaction
2
pursuant to this Agreement in connection with such Loan Agreement, Party
B shall assure (1) that the obligations of Party B under this Agreement are
included as secured obligations under such Collateral Agreement, and
(2) that Party A is included as a secured party under the Collateral
Agreement, pari passu with the other secured obligations under such
Collateral Agreement, is granted a security interest in the
collateral which is the subject of such Collateral Agreement and
is entitled to exercise the rights of a secured party under such
Security Agreement with respect to such collateral. Any such
Security Agreement shall be a Credit Support Document.
Part 2
Documents to be Delivered
For the purpose of Sections 4(a) of this Agreement, each party
agrees to deliver the following documents as applicable:
Party required Covered by
to deliver Form/Document/ Date by which Section
document Certificate to be Delivered 3(d) Rep.
Party B An opinion of counsel Upon execution Yes
to Party B of this
substantially in the Agreement.
form of Exhibit B to
this Schedule.
Party B Certified copies of Upon execution Yes
its charter, by-laws of this
and resolutions Agreement.
authorizing the
execution, delivery
and performance
hereof.
Party B An incumbency Upon execution Yes
certificate with of this
respect to the Agreement.
signatory of this
Agreement.
3
Party required Covered by
to deliver Form/Document/ Date by which Section
document Certificate to be Delivered 3(d) Rep.
Party B Financial Statements In accordance Yes
of Party B as with the
required under the delivery
terms of the Loan requirements
Agreements between defined in the
Party A and Party B. Loan Agreements.
Party B Fully executed copies Upon execution Yes
of each Credit of this
Support Document to Agreement.
which it or any
Credit Support
Provider for it is a
party.
PART 3
Miscellaneous
(1) Address for Notices. For the purpose of Section 10(a) of
this Agreement:
Address for notices or communications to Party A:
Address: 301 South College
Charlotte, NC 28288-0601
Attention: John Wheatley
Telex No.: 6827051 Answerback: 55555
Facsimile No.: (704) 374-4484 Telephone No.: (704) 374-4283
(704) 383-5389
Address for notices or communications to Party B:
Address: ____________________
Attention: ____________________
Telex No.: ____________________ Answerback: ___________
Facsimile No.: ____________________ Telephone No.: _________
(2) Calculation Agent. The Calculation Agent is Party A.
4
(3) Credit Support Documents means with respect to Party B,
the Amended and Restated Credit Agreement among Culp, Inc.
and First Union National Bank of North Carolina as agent for
First Union National Bank of North Carolina and Wachovia
Bank of North Carolina, N.A. as amended from time to time.
(4) Credit Support Providers. Not applicable.
(5) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New
York without reference to choice of law doctrine.
(6) Netting of Payments. Subparagraph (ii) of Section 2(c)
of this Agreement will not apply to all Transactions entered
into under this Agreement unless provided otherwise in the
Confirmation relating to a specific Transaction.
(7) "Affiliate" in the case of Party A means First Union
Corporation and in the case of Party B has the meaning
specified in Section 12 of this Agreement.
PART 4
Other Provisions
(1) Confirmation. A form of Confirmation is set forth as
Exhibit A hereto. An execution copy of each Confirmation
incorporating the terms of the related Transaction will be
prepared by Party A and forwarded to Party B.
(2) ISDA Definitions. Reference is hereby made to the 1991
ISDA Definitions (the "1991 Definitions") published by the
International Swaps and Derivatives Association, Inc., which
is hereby incorporated by reference herein. Any terms used
and not otherwise defined herein which are contained in the
1991 Definitions shall have the meaning set forth therein.
(3) Additional Representations. (a) In entering into each
Relevant Agreement and each Transaction: (i) it is acting as
principal and not as agent, (ii) it is relying solely upon
its own evaluation of the Relevant Agreement or Transaction
(including the present and future results, consequences,
risks, and benefits thereof, whether financial, accounting,
tax, legal, or otherwise) and their suitability for it and
upon advice from its own professional advisors, (iii) it
understands the Relevant Agreement or Transaction and those
risks and is willing to assume those risks, and (iv) it has
not relied and will not be relying upon any evaluation or
advice (including any recommendation, opinion, or
representation) from the other party or the other party's
representatives or advisors (except any made in, or required
5
to be delivered under, any Relevant Agreement and is
expressly set forth in writing).
"Relevant Agreement" means this Agreement, each
Confirmation, any Credit Support Document, and any
agreement (including any amendment, modification,
transfer or early termination) between the parties
relating thereto or to any Transaction.
"representative" of a party means any officer,
director, employee, agent, or affiliate of the
party or any of such affiliate's officers,
directors, employees, agents, or affiliates.
(b) it is an "eligible swap participant" within the meaning
of 17 C.F.R.(Section mark) 35.1.
(4) Right of Setoff. Without affecting the provisions of
this Agreement requiring the calculation of certain net
payment amounts, all payments under this Agreement will be
made without setoff or counterclaim; provided, however, that
if the Non-defaulting Party owes any amount pursuant to
Section 6(e) of this Agreement, then in addition to and not
in limitation of any other right or remedy (including any
right to setoff, counterclaim, or otherwise withhold
payment) under applicable law, it may set off against such
amount the U.S. dollar equivalent of any sum or obligation
(whether or not arising under this Agreement, and whether or
not then due) of the Defaulting Party or any Affiliate of
the Defaulting Party to the Non-defaulting Party or any of
its Affiliates. For this purpose, the equivalent of any
amount, and the present value of any amount not yet due,
shall be determined by the Non-defaulting Party.
(5) Consent to Telephonic Recording. Each party hereby
agrees that the other party or its agents may electronically
record all telephone conversations between officers or
employees of the consenting party and the officers or
employees of the other party who quote swap transactions on
behalf of the party. Any such recordings will be used only
in connection with any misunderstanding or question arising
with respect to any transaction discussed over the telephone
by or on behalf of the parties. Each party further agrees
to notify its officers or employees that telephone
conversations with such persons acting on behalf of the
other party may be recorded.
(6) Waiver of Right to Trial by Jury. Party A and Party B
hereby irrevocably waive any and all right to trial by jury
with respect to any legal proceeding arising out of or
relating to this Agreement or any transaction contemplated
hereby.
6
(7) Additional Agreements. (i) Each party agrees, upon
learning of the occurrence of any event or commencement of
any condition that constitutes (or that with the giving of
notice or passage of time or both would constitute) an Event
of Default or Termination Event with respect to the party,
promptly to give the other party, notice of such event or
condition (or, in lieu of giving notice of such event or
condition in the case of an event or condition that with the
giving of notice or passage of time or both would constitute
an Event of Default or Termination Event with respect to the
party, to cause such event or condition to cease to exist
before becoming an Event of Default or Termination Event).
(ii) Party B agrees to give all notices described in 6(i) of
this Part 5 with respect to any Credit Support Provider.
(8) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability of such provision in such
jurisdiction and such prohibition or unenforceability shall
not impair the validity of such provision in any other
jurisdiction. The parties hereto shall endeavor in good
faith negotiations to replace the prohibited or
unenforceable provision with a valid provision, the economic
effect of which comes as close as possible to that of the
prohibited or unenforceable provision.
IN WITNESS WHEREOF, the parties have executed this
document as of the date specified on the first page of this
Schedule.
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:__(Signature of John F. Wheatley appears here)__
Name: (Hand stamped name of John G. Wheatley appears here)
Title: (Hand stamped Vice President appears here)
CULP, INC.
By:__(Signature of Franklin N. Saxon appears here)__
Name: (Hand written name of Franklin N. Saxon appears here)
Title: (Hand written VP & CP appears here)
7
(First Union Logo appears on left side of page)
Interest Rate Swap
Date: July 6, 1995
To: Mr. Franklin N. Saxon
Culp, Inc.
101 South Main Street
7th Floor
High Point, NC 27261-2686
Phone: 910-888-6266 Fax: 910-887-7089
From: First Union National Bank of North Carolina
Subject: Interest Rate Swap
Ref. No. 9956-A
Dear Mr. Saxon:
The purpose of this letter agreement is to set forth the
terms and conditions of the Interest Rate Swap Transaction entered
into between Culp, Inc. ("Counterparty") and First Union National
Bank of North Carolina ("First Union") on the Trade Date
specified below (the "Swap Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
1. The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swap Dealers
Association, Inc.) (the "Definitions"), are incorporated into this
Confirmation. In the event of any inconsistency between those
definitions and the provisions and this Confirmation, this Confirmation
will govern.
If you and we are parties to a Master Agreement that sets forth
the general terms and conditions applicable to Swap Transactions
between us (a "Swap Agreement"), this Confirmation supplements, forms
a part of, and is subject to, such Swap Agreement. If you and we
are not yet parties to a Swap Agreement, this Confirmation will
supplement, form a part of, and be subject to, a Swap Agreement upon
its execution by you and us. All provisions contained or incorporated
by reference in such Swap Agreement shall govern this Confirmation
except as expressly modified below. In addition, if a Swap Agreement
has not been executed, this Confirmation will itself evidence a
complete binding agreement between you and us as to the terms and
conditions of the Swap Transaction to which this Confirmation relates.
Each party is hereby advised, and each such party
acknowledges, that the other party has engaged in ( or refrained from
engaging in) substantial financial transactions and has taken other
material actions in reliance upon the parties' entry into the Swap
Transaction to which this Confirmation relates on the terms and
conditions set forth below.
If on any Calculation Date (or if, for any Calculation period,
as applicable), (a) the product of the Fixed Rate and the Fixed Rate
Day Count Fraction exceeds the product of the Floating Rate (plus or
minus the Spread, if applicable) and the Floating Rate Day Count
Fraction, the Fixed Rate Payer shall pay the Floating Rate Payer, on
the relevant Payment Date, an amount equal to such excess multiplied by
the Notional amount, (b) the product of the Floating Rate (plus or
minus the spread if applicable) and the Floating Rate Day Count
Fraction exceeds the product of the Fixed Rate and the Fixed Rate Day
Count Fraction, the Floating Rate Payer shall pay the Fixed Rate Payer,
on the relevant Payment Date, an amount equal to such excess multiplied
by the Notional Amount, or (c) the product of the Fixed Rate and
the Fixed Rate Day Count Fraction is equal to the product of the
Floating Rate (plus or minus the Spread, if applicable) and the
Floating Rate Day Count Fraction, no amount shall be due by either side
on the relevant Payment Date. Each party's obligation to make payment of
any amount which would otherwise by due hereunder on a Payment Date
shall be automatically satisfied and discharged by payment of the
net amount due on such Payment Date, determined in the foregoing manner.
This Confirmation will be governed by and construed in
accordance with the laws of the State of New York, without reference
to choice of law doctrine, provided that this provision will be
superseded by any choice of law provisions contained in the Swap
Agreement.
2. The terms of the particular Swap Transaction to which this
Confirmation relates are as follows:
Transaction Type: Interest Rate Swap
Trade Date: April 17, 1995
Effective Date: April 19, 1995
Termination Date: April 19, 2000, subject to
adjustment in
accordance with the Modified
Following Business
Day Convention
Notional Amount: USD 15,000,000.00
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Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payment Dates: Monthly on the 19th day of
each month, starting
May 19, 1995, through and
including the
Termination Date, subject to
the Modified
Following Business Day
Convention.
Fixed Rate: 7.34%
Fixed Rate Day
Count Fraction: ACT/360
Floating Amounts:
Floating Rate Payer: First Union
Floating Rate Payment Dates: Monthly on the 19th day of
each month, starting
May 19, 1995, through and
including the
Termination Date, subject to
the Modified
Following Business Day
Convention.
Floating Rate for Initial
Calculation Period: 6.1250%
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Spread: 0.50%
Floating Rate Day
Count Fraction: ACT/360
Reset Dates: Monthly on the 19th day of
each month, starting
May 19, 1995, through and
including March 19,
2000, subject to the Modified
Following Business
Day Convention.
Calculation Agent: First Union
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Business Days: New York
Business Day Convention: Modified Following
Governing Law: State of New York
Payments to First Union: First Union Charlotte
Capital Markets
Attention: Derivatives Desk
Fed. ABA No. 053000219
Ref. No.: 9956-A
First Union Settlements: Brian Hall
Derivatives Desk
Ph. No.: 704-383-1185, Fax
No.: 704-383-9139
Payments to Counterparty: Please forward instructions to
FUNB-NC. No
payments will be made prior to
receipt of
Counterparty's payment
instructions.
First Union Address: One First Union Center
301 South College Street TW-9
Charlotte, NC 28288-0601
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Please confirm that the foregoing correctly sets forth the
terms of our agreement by executing a copy of this Confirmation
enclosed for that purpose and returning it to us.
Very truly yours,
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: (Sig of Joseph M. Nenichka)
Name: Joseph M. Nenichka
Title: Vice President
Date: (handwritten copy--4/17/95)
By: (sig of Kenneth A. Gill, III)
Name: Kenneth A. Gill, III
Title: Vice President
Date: (handwritten copy--4/17/95)
Accepted and confirmed as of
the date first above written:
CULP, INC.
By: (Signature of Franklin N. Saxon)
Name: (handwritten--Franklin N. Saxon)
Title:(handwritten--VP & CFO)
Date: (handwritten--4/18/95)
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