EXHIBIT 4(j)
LOAN AGREEMENT
November 19,1997
Xxxxxxx, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
We are pleased to make available to you an uncommitted credit facility for
general corporate purposes on tthe terms set forth in this letter.
1. We agree to consider from time to time, in our sole discretion, your
requests that we make Aadvances (as hereafter defined) to you, on either
an interest bearing or a discount basis, in an aggregate amount not to
exceed at any one time outstanding the amount set forth on Schedule I
hereto as the "Facility Amount," on the terms and conditions set forth
below. This letter is not a commitment to lend but rather sets forth the
procedures to be used in connection with your requests for our making of
Advances to you from time to time on or prior to the termination hereof
pursuant to paragraph 11 hereof and, in the event that we make Advances
to you hereunder, your obligations to us with respect thereto. The
Advances shall be evidenced by the "grid" promissory note executed by you
in substantially the form of the promissory note attached hereto (the
"Note").
2. As used herein, the following terms shall have the following meanings
(terms defined in the singular to have the corresponding meanings when
used in the plural, and vice versa):
"Advance" means any advance that we shall make to you hereunder pursuant
to your request as provided herein. Unless otherwise required by the
context, any reference herein or in the Note to the amount of an Advance
shall be construed to refer to the Discounted Proceeds thereof actually
remitted to you or to your account as proved herein.
"Discounted Amount" of any Advance means the amount by which the Stated
Amount of such Advance exceeds the Discounted Proceeds of such Advance.
"Discounted Proceeds" of any Advance means the net proceeds of such
Advance transferred or wired to you or to your account in accordance with
the last sentence of Paragraph 3 hereof.
"Stated Amount" of any Advance means the full stated or face amount of
such Advance, which in all circumstances shall be equal to the sum of (x)
the Discounted Proceeds of such Advance plus (y) the Discount Amount of
such Advance.
3. The Stated Amount of each Advance shall be in an amount at least equal to
the amount set forth on Schedule I hereto as the "Minimum Advance
Amount", or any integral multiple of $1,000 in excess thereof. Each
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Advance and shall be made upon (i) your request to us by telephone,
telecopy, fax, or letter, given by any of the persons listed on Exhibit A
hereto or otherwise designated by your Treasurer in writing ("Designated
Persons") that you wish to borrow money on a specified date, in a specific
amount and for a specified term (which shall, in no event, be longer than
the number of days set forth on Schedule I hereto as the "Maximum Term");
and Discount Amount and Stated Amount applicable to any such Advance. On
the date of any such Advance, we will make such Advance available to you in
same day funds by directing our administrative agent to transfer or wire
the net proceeds of such Advance to an account designated in writing by
your Treasurer.
4. Our agreement and acceptance of this letter, together with your
furnishing us certified copies of resolutions of your board of directors
authorizing your Treasurer to execute this letter and any documents
delivered pursuant hereto and allow Designated Persons to request
Advances, together with specimen signatures of such Designated Persons,
shall constitute a representation and warranty by you that (a) the
execution, delivery and performance of this letter has been duly
authorized by all necessary corporate action and does not contravene any
law, or any contractual or legal restriction, applicable to you and (b)
no authorization or approval or other action by, and no notice to or
filing with, any government authority or regulatory body is required for
such execution, delivery and performance or for the making of any
Advance.
5. Each request by you for an Advance shall constitute a representation and
warranty by you, as of the making of such Advance and giving effect to
the application of the proceeds therefrom, that (ai) no payment default
has occurred and is continuing under any agreement or instrument relating
to any of your indebtedness in excess of $20 million relating to moneys
borrowed, (b) such Advance when made will constitute your legal, valid
and binding obligation, (c) such Advance is being incurred, and will be
repaid at maturity, in its full Stated Amount, in the ordinary course of
your business out of the cash flow generated in the normal day-to-day
conduct, operations, and financing activities of your business (to
include refinancings), and (d) no event has occurred and no circumstance
exists as a result of which the information which you have provided to us
in connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading. In no event shall an Advance be made if
any of your representations in Paragraph 4 hereof, or in this Paragraph
5, shall fail to be true and correct in all respects on the date of such
Advance.
6. You shall repay the full Stated Amount of each Advance, and in the case
of an Advance made on an interest bearing basis shall pay interest on
such Advances, in accordance with the terms hereof and of the Note. You
shall have no right to prepay any portion of any Advance or unpaid
principal amount of any Advance prior to its stated maturity.
7. You shall ensure that each payment hereunder and under the Notes is made
before 2:00 p.m. (eastern time) on the day when due in lawful money of
the United States of America to our account, The Centric Capital
Corporation Commercial Paper Account, Account Number 55-46737, ABA Number
000000000, at The First National Bank of Chicago, Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx, 00000 in same day funds. All computations of
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interest shall be made on the basis of a year of 360 days, for the actual
number of days (including the first day but excluding the last day)
elapsed.
8. Whenever any payment to be made hereunder shall be otherwise due on a
Saturday, a Sunday or other day of the year on which banks are required
or authorized to close in New York City, New York, Winston-Salem, North
Carolina or Chicago, Illinois (any other day being a "Business Day"),
such payment shall be made on the next succeeding Business Day.
9. You agree that you will not apply the proceeds of any Advance to purchase
or carry margin stock within the meaning of Regulation G issued by the
Board of Governors of the Federal Reserve System.
10. We shall incur no liability to you in acting upon any telephone,
telecopy, telex, fax, or letter request or communication which we believe
in the absence of gross negligence to have been given by a Designated
Person or in otherwise acting in good faith under this letter. Further,
all documents required to be executed in conjunction with Advances under
this letter may be signed by any Designated Person.
11. This letter shall remain in effect until terminated by either you or us
by giving prior written notice of termination hereof to the other party
hereto, but no such termination shall affect your obligations with
respect to the Advances hereunder outstanding at the time of such
termination.
12. All communications hereunder shall be in writing (other than the
communication provided for in the second sentence of Paragraph 14 and
part (i) of paragraph 3 herein) and mailed, telecopied, telephoned,
faxed, or delivered to the address specified on Schedule I hereto for you
and for us, or as to each party, to such other address as may be
designated by such party in a written notice to the other party. Written
communication shall be effective upon receipt unless such communication
is mailed in which case it shall be effective three Business Days after
deposit in first class mail.
13. We may assign to one or more banks or other entities all or any part of,
or may grant participations to one or more banks or other entities in or
to all or any part of, any Advance or Advances hereunder and under the
Note. You may not assign your rights or obligations hereunder or any
interest herein.
14. You agree to pay on demand all reasonable costs, expenses including, but
not limited to, outside legal fees and losses, if any, incurred by us in
connection with the enforcement of this letter or the Note.
15. You agree to furnish us with such financial statements or other
information as we may reasonably request. Any such information that is
not generally available to the public shall be confidentially maintained
by us and shall not be disseminated outside of our organization except as
might be required by legal or regulatory bodies. You shall promptly
notify us of any change in the short term or long term ratings assigned
by any statistical rating organization to any of your outstanding
indebtedness.
16. If any of the following events shall occur and be continuing:
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(a) you shall fail to pay any amount due hereunder or under the Note
when the same becomes due and payable; or
(b) any representation or warranty made by you (or any of your officers)
in connection with any Advance or otherwise in connection with the Note
shall prove to have been incorrect in any material respect when made; or
(c) you shall, without prior written notification, merge or consolidate
with or into any person or entity and you are not the surviving entity to
such transaction, or shall convey, transfer, lease or dispose of (whether
in one transaction or in a series of transactions) all or substantially
all of your assets other than sale of inventory in the ordinary course of
business to, any person or entity; or
(d) you shall fail to perform or observe, without prompt notification,
any other material term, covenant or agreement in connection with any
Advance or otherwise in connection with the Note on your part to be
performed or observed; or
(e) you shall fail to pay any principal of or premium or interest on any
indebtedness for money borrowed, in excess of $20,000,000 (excluding
indebtedness evidenced by the Note), when the same becomes due and
payable (whether by scheduled maturity, required prepayments,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such indebtedness; or any other event shall occur
or condition shall exist under any agreement or instrument relating to
such indebtedness and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such
condition is to accelerate the maturity of such indebtedness; or any such
indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or
(f) you shall generally not pay your debts as such debts become due, or
shall admit in writing your inability to pay your debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against you seeking to adjudicate
you as bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of you or your debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for you or any substantial part of
your property and such action is unresolved after 60 days; or you shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f);
then, and in any such event, we may declare the Note and all amounts
payable thereunder to be forthwith due and payable, whereupon the Note
and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind all of
which you hereby expressly waive; provided however, that in the event of
an actual or deemed entry of an order for relief with respect to you
under the Federal Bankruptcy Code, the Note and all such other amounts
shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by you.
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17. THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
18. You agree that you will not institute against or join any other person in
instituting against us any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and a day after
the latest maturing commercial paper note issued by us is paid in full.
19. At our option, we may, upon notice that either Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx'x
Investors Service, Inc. has (i) lowered or downgraded its short term
commercial paper or corporate bond or other short term ratings of you, or
(ii) placed your securities on a watch list of securities singled out for
surveillance, with either negative or developing implications in a Rating
Category, amend Schedule I hereof to provide for an amended "Facility
Amount" and amended "Maximum Term."
20. The obligations under this Agreement are solely our corporate
obligations. No recourse shall be had for the payment of any amount
owing by you or us hereunder or any other obligation or claim of or
against you or us arising out of or based upon this Agreement against any
of our respective stockholders, employees, officers, directors or
incorporators.
21. You irrevocably agree that any legal action, suit or proceeding against
us arising out of this Agreement may be brought in the United States
District Court for the State of New York, or in the courts of the State
of New York and hereby irrevocably accept and submit to the non-exclusive
jurisdiction of each of the aforesaid courts in personam, generally and
unconditionally with respect to any action, suit or proceeding for you
and in respect of your properties, assets and revenues. You further
irrevocably agree to the service of any legal process, summons, notices
and documents out of any of the aforesaid courts by mailing copies
thereof by registered or certified air mail, postage prepaid, to you at
your address designated pursuant to this Agreement. Nothing herein shall
in any way be deemed to limit our ability to serve any such legal
process, summons, notices and documents in any other manner, as may be
permitted by applicable law or to obtain jurisdiction over you, or bring
action, suits or proceedings against you in such other jurisdictions, and
in such manner, as may be permitted by applicable law.
If the terms of this letter are satisfactory to you, please indicate your
agreement and acceptance thereof by signing a counterpart of this letter
and returning it to us.
Very truly yours,
CENTRIC CAPITALFUNDING CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Wachovia Bank, N.A.
Xxxxxxxx Xxxxxx, Vice President
Agreed and Accepted:
Xxxxxxx, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name & Title: Xxxxx X. Xxxxxxxx, VP, Chief Financial Officer and Treasurer:
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SCHEDULE I
to
Loan Agreement dated as of November 19, 1997
between Centric Capital Corporation and Xxxxxxx, Inc.
amended promissory note dated 1/16/98
(i) For the purposes of Section 1 and 2 of this Loan Agreement:
The "Facility Amount" is $200,000,000
The "Minimum Advance Amount" is $5,000,000
The "Maximum Term" is 270 days.
The "Minimum Term" is 14 days.
(ii) For the purpose of Section 11 of this Loan Agreement:
The address for written communications to you is:
Xxxxxxx, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone Number: 000-000-0000
Fax Number: 000-000-0000
The address for written communications to us is:
Centric Capital Corporation
x/x Xxxxxxxx Xxxx xx Xxxx xx Xxxxxxx, X.X.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Mail Code: GA-370
Telephone Number: 000-000-0000
Fax Number: 000-000-0000
(iii) For the purposes of this Loan Agreement, instructions for wire transfer
of funds to you are:
Name of Bank: Fleet National Bank, Providence, Rhode Island
Bank ABA Number: 011 500 010
Account Name: WS Subsidiary
Account Number: 10 691 1002
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Exhibit A
to
Loan Agreement dated as of November 19, 1997
between Centric Funding Corporation and Xxxxxxx, Inc.
For the purpose of Section 2 of this Loan Agreement, the "Designated Persons"
are:
Name Title
---- -----
Xxxxx X. Xxxxxxxx CFO and Treasurer
Xxxxxx Xxxxxxx Assistant Treasurer
Xxxx Xxxxxxxx Assistant Cash Manager
Promissory Note
DATE: January 16, 1998 $ 200,000,000.00
FOR VALUE RECEIVED, the undersigned (hereinafter called the "Borrower"),
HEREBY PROMISES TO PAY to the order of Centric Funding Corporation
(hereinafter called the "Lender") the entire State Amount (as such term is
defined in the loan Agreement hereinafter referred to) of each Advanced (as
defined below) on the date mutually agreed to by the Lender and the Borrower
at the time of such Advance as the maturity date thereof.
(a) in the case of an Advance made on an interest bearing basis, the
principal amount of such Advance made by the Lender to the Borrower, on the
date mutually agreed to by the Lender and the Borrower at the time of such
Advance as the maturity date thereof, together with interest (computed on the
basis of a year of 360 days for the actual number of days, including the
first day but excluding the last day, elapsed) on the principal amount of
each Advance outstanding from time to time from and including the date on
which such Advance is made until the maturity date of such Advance at an
interest rate per annum mutually agreed to by the Lender and the Borrower at
the time of such Advance, payable on the maturity date of such Advance; and
(b) in the case of each Advance made on a discount basis by the Lender
to the Borrower, the stated or face amount of such Advance, on the date
mutually agreed to by the Lender and the Borrower at the time of such Advance
as the maturity date thereof.
Any overdue principal amount and overdue amount of interest, reasonable fees
or other amounts payable hereunder or under the Loan Agreement referred to
below shall bear interest, payable on demand, at a fluctuating interest rate
per annum equal to the Prime Rate plus 2%, but in no event greater than the
highest rate allowed by applicable law. As used herein, "Prime Rate" shall
mean the prime rate of U.S. money center commercial banks as published in the
Wall Street Journal. Changes in the Prime Rate shall be effective as of the
day of each such change.
The Borrower shall have no right to prepay all or any portion of any
unpaid principal amount of any Advance.
The Borrower shall ensure that payment of principal and interest
hereunder is made prior to 12:00 p.m. (eastern time) on the day when due in
lawful money of the United States of America to the Lender's account, The
Centric Funding Corporation Commercial Paper Account, Account Number 55-
46737, ABA Number 000000000 at The First National Bank of Chicago, Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000 in same day funds. Whenever any
payment to be made hereunder shall be otherwise due on a day other than a
Business Day (as defined in the Loan Agreement) such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest.
The Borrower hereby authorizes the Lender to endorse on the grid
attached hereto the date and amount of each Advance made by the Lender to the
Borrower hereunder, the maturity date thereof, the rate of discount
applicable thereto, the Discounted Proceeds and the Discount Amount (as such
terms are defined in the Loan Agreement referred to below) thereof and all
payments made on account thereof, provided that the failure to do so shall
not affect the obligation of the Borrower to the Lender.
The Borrower also agrees to pay on demand all reasonable costs and
expenses (including fees and expenses of counsel) incurred by the Lender in
enforcing this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
This Promissory Note is the "grid" promissory note referred to in, and
is entitled to the benefits of, the Loan Agreement dated November 19, 1997
(the "Loan Agreement"), between the Borrower and the Lender, which Loan
Agreement, among other things, sets forth procedures to be used in connection
with the Borrower's periodic requests that the Lender make advances (the
"Advances") to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the amount first above mentioned.
Xxxxxxx, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name & Title: Xxxxx Xxxxxxxx
Chief Financial Officer
