Exhibit 10
EXECUTION COPY
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of May 31, 2001
Between
FAMILY DOLLAR STORES, INC.
and
FAMILY DOLLAR, INC.
as
Borrower
and
BANK OF AMERICA, N.A.
as Bank
U.S.$150,000,000
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is for convenience of reference.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions ........................................... 1-9
SECTION 1.02. Accounting Terms and Determinations ................... 9
SECTION 1.03. Classes and Types of Loans ............................ 9
ARTICLE II
LOANS
SECTION 2.01. Commitments ........................................... 10
SECTION 2.02. Notes ................................................. 11
SECTION 2.03. Repayment of Loans ....................................11-12
SECTION 2.04. Interest .............................................. 13
SECTION 2.05. Borrowing Procedure ................................... 13
SECTION 2.06. Prepayments, Conversions, and Continuations of Loans... 14
SECTION 2.07. Minimum Amounts ....................................... 14
SECTION 2.08. Certain Notices ....................................... 14
SECTION 2.09. Use of Proceeds ....................................... 15
SECTION 2.10. Facility Fee .......................................... 15
SECTION 2.11. Computations .......................................... 15
SECTION 2.12. Reduction or Termination of Commitments ............... 15
SECTION 2.13. Payments .............................................. 15
SECTION 2.14 Extension of Tranche A Termination Date ............... 15
SECTION 2.15. Extension of Tranche B Termination Date ............... 16
SECTION 2.16. Lending Office ........................................ 16
ARTICLE III
CHANGE IN CIRCUMSTANCES
SECTION 3.01. Increased Cost and Reduced Return ..................... 17
SECTION 3.02. Limitation on Eurodollar Loans ........................ 18
SECTION 3.03. Illegality ............................................ 18
SECTION 3.04. Compensation .......................................... 19
ARTICLE IV
CONDITIONS
SECTION 4.01. Initial Tranche A Loan or Tranche B Loan .............. 20
SECTION 4.02. Each Tranche A Loan or Tranche B Loan .................20-21
SECTION 4.03. Term Loans ............................................ 21
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Existence ............................................. 22
SECTION 5.02. Financial Statements .................................. 22
SECTION 5.03. Authorization; No Breach .............................. 22
SECTION 5.04. Litigation ............................................ 23
SECTION 5.05. Enforceability ........................................ 23
SECTION 5.06. Approvals ............................................. 23
SECTION 5.07. Compliance with Laws .................................. 23
SECTION 5.08 Ownership of Property Liens ........................... 23
ARTICLE VI
COVENANTS
SECTION 6.01. Information ........................................... 24
SECTION 6.02. Fundamental Obligations ............................... 25
SECTION 6.03. Liens .................................................25-26
SECTION 6.04. Leverage Ratio ........................................ 27
SECTION 6.05. Consolidated Fixed Charge Coverage Ratio .............. 27
SECTION 6.06 Disposition of Property ............................... 27
SECTION 6.07. Mergers, Consolidations, Etc .......................... 27
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default .....................................28-29
SECTION 7.02. Remedies .............................................. 30
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Right of Set-off ...................................... 31
SECTION 8.02. No Waiver; Cumulative Remedies ........................ 31
SECTION 8.03. Successors and Assigns ................................ 31
SECTION 8.04. Amendments ............................................ 31
SECTION 8.05. Notices ............................................... 31
SECTION 8.06. Counterparts .......................................... 32
SECTION 8.07. Severability .......................................... 32
SECTION 8.08. Controlling Agreement ................................. 32
SECTION 8.09. Indemnification ....................................... 32
SECTION 8.10. Survival .............................................. 33
SECTION 8.11. Governing Law ......................................... 33
SECTION 8.12. WAIVER OF JURY TRIAL .................................. 33
SECTION 8.13. ENTIRE AGREEMENT ...................................... 33
SECTION 8.14. Confidentiality ....................................... 33
SECTION 8.15. Restatement............................................ 34
Exhibit A-1 - Tranche A Note: Family Dollar Stores, Inc.
Exhibit A-2 - Tranche A Note: Family Dollar, Inc.
Exhibit B-1 - Tranche B Note: Family Dollar Stores, Inc.
Exhibit B-2 - Tranche B Note: Family Dollar, Inc.
Exhibit C-3 - Term Note
Exhibit D1-D7 – Guarantee Agreement
___________________
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (the "Agreement") dated as of
May 31, 2001, between FAMILY DOLLAR STORES, INC., a Delaware corporation
("FDSI"), FAMILY DOLLAR, INC., a North Carolina corporation ("FDI") (FDSI and
FDI are collectively referred to herein as the "Borrower"), and BANK OF AMERICA,
N.A., a national banking association and successor by merger to NationsBank,
N.A. (the "Bank").
WHEREAS, the Bank and the Borrower are parties to that certain Credit
Agreement dated as of March 31, 1996, as amended from time to time (the
"Existing Credit Agreement").
WHEREAS, the Bank and the Borrower wish to amend and restate the Existing
Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the Bank and the Borrower agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Adjusted CD Rate" means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) determined by the Bank to be equal to
the sum of (a) the CD Rate for such day divided by 1 minus the Domestic Reserve
Percentage plus (b) the Assessment Rate.
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Bank to be equal to the quotient obtained
by dividing (a) the Eurodollar Rate for such Eurodollar Loan for such Interest
Period by (b) 1 minus the Eurodollar Reserve Percentage for such Eurodollar Loan
for such Interest Period.
"Affiliate" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such Person
(a "Controlling Person") or (ii) any Person that is controlled by or under
common control with a Controlling Person. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management of a Person by voting securities, by contract, or
otherwise.
"Applicable Lending Office" means, for each Type of Loan, the "Lending
Office" of the Bank (or of an Affiliate of the Bank) designated for such Type of
Loan on the signature pages hereof or such other office of the Bank (or of an
Affiliate of the Bank) as the Bank may from time to time specify to the Borrower
as the office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" means .275%.
Assessment Rate" means, for any day, the annual assessment rate (rounded
upwards, if necessary, to the nearest 1/100 of 1%) which is payable by the Bank
to the Federal Deposit Insurance Corporation (or any successor) for deposit
insurance for Dollar time deposits with the Bank at its Principal Office as
determined by the Bank. The Adjusted CD Rate shall be adjusted automatically on
and as of the effective date of any change in the Assessment Rate.
"Business Day" means any day except a Saturday, Sunday, or other day on
which banks in Charlotte, North Carolina, are authorized by law to close and, if
the applicable Business Day relates to Eurodollar Loans, on which commercial
banks in London are open for international business (including dealings in
Dollar deposits in the London interbank market).
(1)
"CD Loans" means Tranche A Loans and Tranche B Loans that bear interest at
rates based upon the Adjusted CD Rate.
"CD Rate" means, for any day, the rate per annum equal to the interest rate
for certificates of deposit in the secondary market with maturities of three (3)
months as published for such day in Federal Reserve Statistical Release H.15 or
any successor publication, or if such day is not a Business Day, the rate
published for the preceding Business Day.
"Class" shall have the meaning specified in Section 1.03.
"Commitments" means the Tranche A Commitment and the Tranche B Commitment.
"Consolidated Debt" means, at any time, the total Debt of the Borrower and
its Subsidiaries which would be shown on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP at such time.
"Consolidated EBITR" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of
(a) Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount
of taxes, based on or measured by income, used or included in the determination
of such Consolidated Net Income, and (d) total Lease Rentals.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of Consolidated EBITR for the period of the four fiscal
quarters ending on such date to the sum of (a) total Interest Charges for the
period of the four fiscal quarters ending on such date, and (b) total Lease
Rentals for the period of the four fiscal quarters ending on such date.
"Consolidated Net Income" means, with respect to any period, the net income
(or loss) from continuing operations and after extraordinary items (excluding
gains or losses from dispositions of Property) of the Borrower and its
Subsidiaries for such period (taken as a cumulative whole), as determined in
accordance with GAAP.
"Consolidated Net Worth" means, at any time,
(a) the total assets of the Borrower and its Subsidiaries which would be
shown as assets on a consolidated balance sheet of the Borrower and its
Subsidiaries as of such time prepared in accordance with GAAP, after eliminating
all amounts properly attributable to minority interests, if any, in the stock
and surplus of Subsidiaries, minus
(b) the total liabilities of the Borrower and its Subsidiaries which would
be shown as liabilities on a consolidated balance sheet of the Borrower and its
Subsidiaries as of such time prepared in accordance with GAAP.
"Continue", "Continuation", and "Continued" shall refer to a continuation
pursuant to Section 2.06 of a Eurodollar Loan as a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to the conversion
pursuant to Section 2.06 or Article III of one Type of Tranche A Loan or Tranche
B Loan into another Type of Tranche A Loan or Tranche B Loan, as the case may
be.
(2)
"Debt" means as to any Person at any time (without duplication): (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, notes, debentures, or other similar instruments, (c)
all obligations of such Person to pay the deferred purchase price of Property or
services, except trade accounts payable of such Person arising in the ordinary
course of business that are not past due by more than ninety (90) days, (d) all
capital lease obligations and Synthetic Lease Obligations of such Person, (e)
all Debt or other obligations of others Guaranteed by such Person, (f) all
obligations secured by a Lien existing on Property owned by such Person whether
or not the obligations secured thereby have been assumed by such Person or are
non-recourse to the credit of such Person, (g) all reimbursement obligations of
such Person (whether contingent or otherwise) in respect of letters of credit,
bankers' acceptances, surety or other bonds and similar instruments, (h) all
obligations of such Person to redeem or retire shares of capital stock or other
equity securities of such Person, and (i) all obligations of such Person in
respect of interest rate protection agreements, foreign currency exchange
agreements, commodity purchase or option agreements, or other interest or
exchange rate or price hedging agreements.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments, or similar debtor relief laws from time to time in effect affecting
the rights of creditors generally.
"Default" means an Event of Default or the occurrence of an event or
condition that with notice or lapse of time or both would become an Event of
Default.
"Default Rate" means, with respect to any principal of any Loan or any
other amount payable by the Borrower under this Agreement, a rate per annum
during the period from and including the due date to but excluding the date on
which such amount is paid in full equal to two percent (2%) plus the rate of
interest that would otherwise be applicable pursuant to this Agreement.
"Dollars" and "$" mean lawful money of the United States of America.
"Domestic Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
actual reserve requirement (including, without limitation any basic,
supplemental, or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion Dollars in respect
of new certificates of deposit having a maturity of three (3) months and in an
amount of $100,000 or more. In the event that the foregoing reserve requirement
is required by law to be determined on the basis of the aggregate of such
deposits of the Bank, the Bank may use any reasonable allocation or attribution
methods in determining the Domestic Reserve Percentage. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective date of any change in
the Domestic Reserve Percentage.
(3)
"Equity Issuance" means (a) any issuance or sale by the Borrower or any of
its Subsidiaries after the date hereof of (i) any capital stock of such issuing
or selling Person, (ii) any warrants or stock options exercisable in respect of
any capital stock of such issuing or selling Person or (iii) any other security
or instrument representing an equity interest (or their right to obtain an
equity interest) in the issuing or selling Person, or (b) the receipt by the
Borrower or any of its Subsidiaries after the date hereof of any capital
contribution received (whether or not evidenced by any equity security issued by
the recipient of such contribution); provided, however, that the term "Equity
Issuance" shall not include (x) any such issuance or sale by any Subsidiary of
the Borrower to the Borrower or any Wholly-Owned Subsidiary of the Borrower or
(y) any capital contribution by the Borrower or any Wholly-Owned Subsidiary of
the Borrower to any Subsidiary of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary, and all members of a
controlled group of corporations and all trades and businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Eurodollar Loans" means Tranche A Loans and Tranche B Loans that bear
interest at rates based upon the Adjusted Eurodollar Rate.
"Eurodollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the actual reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars in
respect of "Eurocurrency Liabilities" which includes deposits by reference to
which the interest rate on Eurodollar Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of the Bank to United States residents. In the event that the foregoing
reserve requirement is required by law to be determined on the basis of the
aggregate of such Eurocurrency Liabilities, extensions of credit, or other
assets of the Bank, the Bank may use any reasonable allocation or attribution
methods in determining the Eurodollar Reserve Percentage. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Eurodollar Reserve Percentage.
(4)
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest Period
therefor: (a) the rate per annum appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; or (b) if
for any reason the rate set forth in clause (a) above is unavailable, the rate
per annum appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates; or (c) if for any reason the rates set forth
in clauses (a) and (b) above are unavailable, the rate per annum determined by
the Bank as the rate of interest (rounded upward to the next 1/100th of 1%) at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted and with a term equivalent to such Interest Period would
be offered by the Bank’s London Branch to major banks in the offshore
Dollar market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period.
"Event of Default" has the meaning specified in Section 7.01.
"Existing Credit Agreement" has the meaning assigned to such term in the
first recital hereto.
"Existing Tranche A Note" means that certain Amended and Restated Tranche A
Note in the amount of $50,000,000 dated December 31, 1997 and executed by the
Borrower in favor of the Bank.
"Existing Tranche B Note" means that certain Amended and Restated Tranche B
Note in the amount of $50,000,000 dated December 31, 1997 and executed by the
Borrower in favor of the Bank.
"Family Member" means, with respect to Xx. Xxxx Xxxxxx, his spouse and/or
lineal descendants and any trusts created for the benefit of his spouse and/or
lineal descendants.
"Financial Statements" means the consolidated financial statements of the
Borrower and the Subsidiaries dated August 26, 2000.
"First Anniversary" means, with respect to any Term Loan, the date of the
First Anniversary of the Term Loan Conversion Date for such Loan.
"GAAP" means at any time generally accepted accounting principles as then
in affect in the United States, applied on a basis consistent with the most
recent audited consolidated financial statements of the Borrower and its
Subsidiaries theretofore delivered to the Bank.
(5)
"Governmental Authority" means any nation or government, any state or
political subdivision thereof, any central bank (or similar monetary or
regulatory authority), and any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of or pertaining to
government.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation direct or indirect, contingent or otherwise, of such Person (a) to
purchase or pay (or advance or supply funds from the purchase or payment of)
such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities,
or services, to take-or-pay, or to maintain financial statement conditions or
otherwise), or (b) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment thereof or to
protect the obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business.
"Guarantors" means Family Dollar Services, Inc., a North Carolina
corporation, Family Dollar Operations, Inc., a North Carolina corporation, and
Family Dollar Trucking, Inc., a North Carolina corporation.
"Guaranty" means the Guarantee Agreement of the Guarantors in favor of the
Bank, in substantially the form of Exhibit D, as the same may be amended,
modified, or supplemented.
"Interest Charges" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, fees, charges and related expenses of the Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, (b) the portion of total
Lease Rentals with respect to such period under capital leases that is treated
as interest in accordance with GAAP, and (c) all debt discount and expense
amortized or required to be amortized in the determination of Consolidated Net
Income for such period.
"Interest Period" means with respect to any Eurodollar Loan, each period
commencing on the date such Loan is made or Converted from a CD Loan or the last
day of the next preceding Interest Period with respect to such Loan, and ending
on the numerically corresponding day in the first calendar month thereafter;
except that each such Interest Period which commences on the last Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month. Notwithstanding
the foregoing: (a) each Interest Period which would otherwise end on a day which
is not a Business Day shall end on the next succeeding Business Day (or, if such
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); (b) any Interest Period which would otherwise extend
beyond the Maturity Date shall end on the Maturity Date; (c) no Interest Period
for any Eurodollar Loan shall have a duration of less than 1 month, and if the
Interest Period for any Eurodollar Loan would otherwise be a shorter period,
such Loan shall not be available hereunder; and (d) there shall be no more than
8 Interest Periods outstanding at any time.
(6)
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Lease Rentals" means, with respect to any period, the sum of the rental
and other obligations required to be paid during such period by the Borrower and
its Subsidiaries on a consolidated basis as lessee under all leases of real or
personal Property that would be treated as lease or rental expense under GAAP.
“Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Debt as of such date, to (b) the sum of Consolidated
Debt and Consolidated Net Worth.
“Lien” means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Loan Documents" means this Agreement, the Notes, and the Guaranty, as the
same may be amended, modified, renewed, extended, or supplemented.
"Loan Party" means the Borrower, each Guarantor, or any other Person that
guaranties or secures any or all of the Borrower’s obligations under the
Loan Documents.
"Loans" means Tranche A Loans, Tranche B Loans, and the Term Loan.
"Material Adverse Effect" means any event or condition which (a) causes
Consolidated Net Worth (measured as of the last day of the Borrower's most
recently ended fiscal quarter (the "Current Quarter")) to decrease by more than
fifteen percent (15.0%) relative to Consolidated Net Worth (measured as of the
last day of the fiscal quarter of the Borrower which ended immediately prior to
the Current Quarter), (b) has a material adverse effect on the ability of any
Loan Party to pay and perform its obligations under any Loan Document, or (c)
has a material adverse effect on the validity or enforceability of any Loan
Document or the rights and remedies of the Bank thereunder.
"Material Subsidiaries" means, at any time, Subsidiaries of the Borrower
the total assets of which exceed $25,000,000. "Material Subsidiary" means, at
any time, any Subsidiary the total assets of which exceed $25,000,000.
"Maturity Date" means (i) in the case of Tranche A Loans, the Tranche A
Termination Date, (ii) in the case of Tranche B Loans, the Tranche B Termination
Date, and (iii) in the case of any Term Loan, the date that the last installment
of principal of such Loan is payable in accordance with Section 2.03(c).
"Multiemployer Plan" means, at any time, an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person that has ceased to be a member of the ERISA Group during
such five year period.
(7)
"Notes" means the Tranche A Note, the Tranche B Note, and the Term Notes.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means any individual, corporation, company, joint venture,
association, partnership, trust, unincorporated organization, Governmental
Authority, or other entity.
"Prime Rate" means the per annum rate of interest established from time to
time by the Bank as its prime rate, which rate may not be the lowest rate of
interest charged by the Bank to its customers. Any change in the Prime Rate
shall be effective on the date of such change.
"Principal Office" means the office of the Bank located at 000 X. Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
"Property" means property of all kinds, real, personal, or mixed, tangible,
or intangible (including, without limitation, all rights relating thereto),
whether owned or acquired after the date of this Agreement.
"Quarterly Date" means the last day of each March, June, September, and
December of each year, the first of which shall be the first such day after the
date of this Agreement.
"Second Anniversary" means, with respect to any Term Loan, the date of the
second anniversary of the Term Loan Conversion Date for such Loan.
"Subsidiary" means, any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other Persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
“Synthetic Lease Obligation” means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations which do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
Debt of such Person (without regard to accounting treatment).
"Term Loan" has the meaning specified in Section 2.01(c).
"Term Loan Conversion Date" has the meaning specified in Section 2.01(c).
"Term Note" means any promissory note provided for in Section 2.02(c) and
any and all extensions, renewals, modifications, and restatements thereof.
(8)
"Tranche A Commitment" means the obligation of the Bank to make Tranche A
Loans hereunder in an aggregate principal amount up to but not exceeding
Seventy-Five Million Dollars ($75,000,000.00), as the same may be reduced
pursuant to Sections 2.01(c) and 2.12 or terminated pursuant to Section 2.12.
"Tranche A Loan" has the meaning specified in Section 2.01(a).
"Tranche A Note" means the promissory note provided for in Section 2.02(a)
and any and all extensions, renewals, modifications, and restatements thereof.
"Tranche A Termination Date" means May 31, 2003, or such earlier date as
the Tranche A Commitment is terminated pursuant to this Agreement.
"Tranche B Commitment" means the obligation of the Bank to make Tranche B
Loans hereunder in an aggregate principal amount up to but not exceeding
Seventy-Five Million Dollars ($75,000,000.00), as the same may be reduced or
terminated pursuant to Section 2.12.
"Tranche B Loan" has the meaning specified in Section 2.01(b).
"Tranche B Note" means the promissory note as referred to in Section
2.02(b) and any and all extensions, renewals, modifications, and restatements
thereof.
"Tranche B Termination Date" means May 30, 2002, or such earlier date as
the Tranche B Commitment is terminated pursuant to this Agreement.
"Type" shall have the meaning specified in Section 1.03.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time; provided that, if the Borrower notifies the Bank
that the Borrower wishes to amend any covenant in Article VI to eliminate the
effect of any change in GAAP on the operation of such covenant (or if the Bank
notifies the Borrower that the Bank wishes to amend any such covenant for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP as in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Bank.
SECTION 1.03. Classes and Types of Loans. Loans hereunder are distinguished
by "Class" and "Type". The "Class" of a Loan (or of a Commitment to make such a
Loan) refers to the determination whether such Loan is a Tranche A Loan, a
Tranche B Loan, or a Term Loan, each of which constitutes a Class. The "Type" of
a Tranche A Loan or a Tranche B Loan refers to the determination whether such
Loan is a CD Loan or a Eurodollar Loan.
(9)
ARTICLE II
LOANS
SECTION 2.01. Commitments.
(a) Subject to the terms and conditions of this Agreement, the Bank agrees
to make one or more loans (the "Tranche A Loans") to the Borrower from time to
time from and including the date hereof to but excluding the Tranche A
Termination Date, provided that the aggregate principal amount of the Tranche A
Loans at any time outstanding shall not exceed the amount of the Tranche A
Commitment. Subject to the foregoing limitations, and the other terms and
provisions of this Agreement, the Borrower may borrow, repay, and reborrow
hereunder the amount of the Tranche A Commitment by means of CD Loans and
Eurodollar Loans.
(b) Subject to the terms and conditions of this Agreement, the Bank agrees
to make one or more loans (the "Tranche B Loans ") to the Borrower from time to
time from and including the date hereof to but excluding the Tranche B
Termination Date, provided that the aggregate principal amount of the Tranche B
Loans at any time outstanding shall not exceed the amount of the Tranche B
Commitment. Subject to the foregoing limitations, and the other terms and
provisions of this Agreement, the Borrower may borrow, repay, and reborrow
hereunder the amount of the Tranche B Commitment by means of CD Loans and
Eurodollar Loans.
(c) Subject to the terms and conditions of this Agreement, at any time and
from time to time on any Business Day on or before the Tranche A Termination
Date, the Borrower may convert all or a portion of the Tranche A Loans then
outstanding into a Term Loan (each a "Term Loan") with a maturity of five (5)
years or seven (7) years. The Borrower shall give the Bank at least five (5)
Business Days prior written notice of each such conversion specifying the date
of the conversion (the "Term Loan Conversion Date"), the principal amount of the
Term Loan, whether installments of principal of the Loan will be payable
quarterly or semiannually after the Second Anniversary for such Term Loan and
the term of such Term Loan. Each Term Loan shall be in a minimum principal
amount of $5,000,000 or increments of $100,000 above such amount, except for the
last Term Loan, which may be less than such amount. Effective as of each Term
Loan Conversion Date, the Tranche A Commitment shall be irrevocably reduced by
the aggregate principal amount of the Tranche A Loans converted into a Term Loan
on such date.
(10)
SECTION 2.02. Notes.
(a) The Tranche A Loans made by the Bank shall be evidenced by a single
promissory note of each Borrower in substantially the form of Exhibit A-1 or
A-2, as appropriate, dated the date hereof, payable to the order of the Bank in
a principal amount equal to the Tranche A Commitment as originally in effect,
and otherwise duly completed.
(b) The Tranche B Loans made by the Bank shall be evidenced by a single
promissory note of each Borrower in substantially the form of Exhibit B-1 or
B-2, as appropriate, dated the date hereof, payable to the order of the Bank in
a principal amount equal to the Tranche B Commitment as originally in effect,
and otherwise duly completed. In the event that a portion (but not all) of the
Tranche A Loans are converted to a Term Loan pursuant to Section 2.01(c), the
Borrower shall on or before the Term Loan Conversion Date for such Term Loan,
execute and deliver to the Bank a new Tranche A Note (in the form of Exhibit A-1
or A-2, as appropriate) in a principal amount equal to the Tranche A Commitment
after giving effect to such conversion, and dated the Term Loan Conversion Date
for such Term Loan. If the Bank shall have received the new Tranche A Note duly
executed by the Borrower as aforesaid, the Bank shall promptly return the
existing Tranche A Note to the Borrower marked "replaced".
(c) Each Term Loan shall be evidenced by a separate promissory note of the
Borrower in substantially the form of Exhibit C, dated the Term Loan Conversion
Date for such Term Loan, payable to the order of the Bank in a principal amount
equal to the amount specified by the Borrower pursuant to Section 2.01(c) for
such Term Loan, and otherwise duly completed.
SECTION 2.03. Repayment of Loans.
(a) The Borrower shall pay to the Bank the outstanding principal amount of
the Tranche A Loans on the Tranche A Termination Date.
(b) The Borrower shall pay to the Bank the outstanding principal amount of
the Tranche B Loans on the Tranche B Termination Date.
(c) In the event that the Borrower converts all or a portion of the Tranche
A Loans into a Term Loan in accordance with Section 2.01(c), the Borrower shall
pay to the Bank the entire principal amount of such Term Loan as follows:
(11)
(i) if such Term Loan will have a term of five (5) years, (A)
installments of principal each in an amount equal to one-fifth
of the original principal amount of such Term Loan shall be
payable on the First Anniversary and Second Anniversary of
such Term Loan, and (B) thereafter (x) if the Borrower has
notified the Bank pursuant to Section 2.01(c) that after the
Second Anniversary installments of principal will be payable
quarterly, installments of principal shall be payable in
twelve (12) equal, consecutive quarterly installments each in
a principal amount equal to one twelfth (1/12th) of the then
outstanding principal amount of such Term Loan on the Second
Anniversary after giving effect to the scheduled payment of
principal on such date, with the first such quarterly
installment being payable on the date occurring three (3)
months after the Second Anniversary and subsequent like
installments being payable every three (3) months thereafter,
or (y) if the Borrower has notified the Bank pursuant to
Section 2.01(c) that after the Second Anniversary installments
of principal will be payable semiannually, installments of
principal shall be payable in six equal, consecutive
semiannual installments each in a principal amount equal to
one sixth (1/6th) of the then outstanding principal amount of
such Term Loan after giving effect to the scheduled payment of
principal on such date, with the first such semiannual
installment being payable on the date occurring six (6) months
after the Second Anniversary and subsequent like installments
being payable every six (6) months thereafter; or
(ii) if the Term Loan will have a term of seven (7) years, (A)
installments of principal each in an amount equal to
one-seventh of the original principal amount of such Term Loan
shall be payable on the First Anniversary of such Term Loan
and the Second Anniversary of such Term Loan, and (B)
thereafter (x) if the Borrower has notified the Bank pursuant
to Section 2.01(c) that after the Second Anniversary
installments of principal of such Loan will be payable
quarterly, installments of principal shall be payable in
twenty (20) equal, consecutive quarterly installments each in
a principal amount equal to one twentieth (1/20th) of the then
outstanding principal amount of such Term Loan on the Second
Anniversary after giving effect to the scheduled payment of
principal on such date, with the first such quarterly
installment being payable on the date occurring three (3)
months after the Second Anniversary and subsequent like
installments being payable every three (3) months thereafter,
or (y) if the Borrower has notified the Bank pursuant to
Section 2.01(c) that after the Second Anniversary installments
of principal will be payable semiannually, installments of
principal shall be payable in ten (10) equal, consecutive
semiannual installments each in a principal amount equal to
one tenth (1/10th) of the then outstanding principal amount of
such Term Loan on the Second Anniversary after giving effect
to the scheduled payment of principal on such date, with the
first such semiannual installment being payable on the date
occurring six (6) months after the Second Anniversary and
subsequent like installments being payable on the dates
occurring every six (6) months thereafter.
(12)
SECTION 2.04. Interest.
(a) The Borrower shall pay to the Bank interest on the unpaid principal
amount of each Tranche A Loan and each Tranche B Loan for the period commencing
on the date of each such Loan to but excluding the date such Loan or portion
thereof shall be paid in full, at the following rates per annum:
(i) during the periods such Loan is a CD Loan, the Adjusted CD
Rate plus the Applicable Margin; and
(ii) during the periods such Loan is a Eurodollar Loan, the
Adjusted Eurodollar Rate plus the Applicable Margin.
(b) The Borrower shall pay to the Bank interest on the unpaid principal
amount of the Term Loans at a rate per annum equal to the Prime Rate.
(c) Notwithstanding the foregoing, the Borrower shall pay to the
Bankinterest at the Default Rate on any principal of any Loan and (to the
fullest extent permitted by law) on any other amount payable by the Borrower
under this Agreement or any other Loan Document which is not paid in full when
due (whether at stated maturity, by acceleration or otherwise), for the period
from and including the due date thereof to but excluding the date the same is
paid in full.
(d) Accrued interest on the Loans shall be due and payable in arrears as
follows: (i) in the case of CD Loans, on each Quarterly Date; (ii) in the case
of each Eurodollar Loan, on the last day of the Interest Period with respect
thereto; (iii) in the case of each Term Loan, every three (3) months after the
Term Loan Conversion Date for such Loan; (iv) upon the payment or prepayment of
any Term Loan or any Eurodollar Loan or the Conversion of any Eurodollar Loan to
a CD Loan (but only on the principal amount so paid, prepaid, or Converted); and
(v) on the Maturity Date; provided that interest payable at the Default Rate
shall be payable from time to time on demand.
SECTION 2.05. Borrowing Procedure. The Borrower shall give the Bank notice
of each borrowing of a Tranche A Loan or Tranche B Loan hereunder in accordance
with Section 2.08. Not later than 3:00 p.m. (Charlotte time) on the date
specified for each such borrowing hereunder, the Bank will make available the
amount of the Tranche A Loan or Tranche B Loan to be made by it on such date to
the Borrower by depositing the same in immediately available funds, in an
account of the Borrower (designated by the Borrower) maintained with the Bank at
the Principal Office or as otherwise directed by the Borrower.
(13)
SECTION 2.06. Prepayments, Conversions, and Continuations of Loans. Subject
to Section 2.07, the Borrower shall have the right from time to time to prepay
all or part of the Loans, or to Convert all or part of any Tranche A Loan or
Tranche B Loan of one Type into a Loan of another Type (but of the same Class)
or to Continue Tranche A Loans or Tranche B Loans as Eurodollar Loans, provided
that: (a) the Borrower shall give the Bank notice of each such prepayment,
Conversion, or Continuation as provided in Section 2.08, (b) Eurodollar Loans
may only be Converted on the last day of the Interest Period, and (c) except for
Conversions into CD Loans, no Conversions or Continuations shall be made while a
Default has occurred and is continuing. Prepayments of any Term Loan shall, at
the election of the Borrower (with notice to the Bank), be applied either (i) to
installments of principal of such Loan in inverse order of maturity, or (ii) to
the then remaining installments of principal of such Loan pro rata. Principal of
the Term Loans paid or prepaid may not be reborrowed.
SECTION 2.07. Minimum Amounts. Except for Conversions and prepayments
pursuant to Article III, each borrowing, each Conversion, and each prepayment of
principal of the Loans shall be in an amount at least equal to $100,000.
SECTION 2.08. Certain Notices. Notices by the Borrower to the Bank of a
termination or reduction of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans shall be irrevocable and shall
be effective only if received by the Bank not later than 1:00 p.m. (Charlotte
time) on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation, or prepayment
specified below:
Number of Business
Notice Days Prior
________________________________________________________________________________
Termination or reduction of
Commitments 3
Borrowing or prepayment of,
or Conversions into, CD Loans same day
Borrowing or prepayment of,
Conversions into, or
Continuations as, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation, or optional prepayment shall specify (a) the Class,
amount, and Type of the Loan to be borrowed, Converted, Continued, or prepaid
(and, in the case of a Conversion, the Type of Loan to result from such
Conversion), and (b) the date of borrowing, Conversion, Continuation, or
prepayment (which shall be a Business Day). In the event the Borrower fails to
select the Type of Loan, within the time period and otherwise as provided in
this Section 2.08, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a CD Loan on the last day of the preceding Interest
Period for such Loan or (if outstanding as a CD Loan) will remain as, or (if not
then outstanding) will be made as, a CD Loan. Notices pursuant to this Section
2.08 may be verbal provided that they are promptly confirmed in writing by
facsimile.
(14)
SECTION 2.09. Use of Proceeds.
(a) The proceeds of the Tranche A Loans and Tranche B Loans shall be used
by the Borrower for general corporate purposes including, but not limited to,
the financing of capital expenditures and the purchase of shares of common stock
of the Borrower.
(b) The Borrower will not, directly or indirectly, use any part of the
proceeds of the Loans for the purpose of purchasing or carrying any margin stock
within the meaning of Regulations G, U, T, or X of the Board of Governors of the
Federal Reserve System, except for purchases of common stock of the Borrower.
2.10. Facility Fee. The Borrower shall pay to the Bank a facility fee (the
"Facility Fee") in an amount equal to 0.0575% per annum on the amount of the
Commitments (as reduced from time to time pursuant to Section 2.01(c) and/or
Section 2.12 hereof), payable quarterly in arrears on each Quarterly Date and on
the Tranche A Termination Date. The Facility Fee shall not accrue (a) on the
Tranche A Commitment after the Tranche A Termination Date, or (b) on the Tranche
B Commitment after the Tranche B Termination Date
SECTION 2.11. Computations. Interest payable by the Borrower hereunder and
under the other Loan Documents shall be computed on the basis of a year of 360
days and the actual number of days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
SECTION 2.12. Reduction or Termination of Commitments. The Borrower shall
have the right to irrevocably terminate or reduce in part the unused portion of
the Commitments at any time and from time to time, provided that: (a) the
Borrower shall give notice of each such termination or reduction as provided in
Section 2.08; and (b) each partial reduction shall be in an aggregate amount at
least equal to $1,000,000.
SECTION 2.13. Payments. All payments of principal, interest, and other
amounts to be made by the Borrower under this Agreement and other Loan Documents
shall be made to the Bank at the Principal Office in Dollars, in immediately
available funds, without setoff, counterclaim or other deduction. Whenever any
payment under this Agreement or any other Loan Document shall be stated to be
due on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case shall be
included in the computation of interest.
SECTION 2.14. Extension of Tranche A Termination Date Within ninety (90)
days prior to the date occurring one year prior to the Tranche A Termination
Date then in effect, the Borrower may submit a written request to the Bank for
an extension of the Tranche A Termination Date for an additional period of one
year. Within thirty (30) days after receipt by the Bank of such notice, the Bank
shall give written notice to the Borrower of its agreement or refusal to extend
the Tranche A Termination Date; provided, however, any failure by the Bank to
respond to any such request in a timely manner shall be deemed to be a refusal
by the Bank to extend the Tranche A Termination Date.
(15)
SECTION 2.15. Extension of Tranche B Termination Date. Within ninety (90)
days prior to the Tranche B Termination Date then in effect, the Borrower may
submit a written request of the Bank for an extension of the Tranche B
Termination Date for an additional period of 364 days. Within thirty (30) days
after receipt by the Bank of such notice, the Bank shall give written notice to
the Borrower of its agreement or refusal to extend the Tranche B Termination
Date; provided, however, any failure by the Bank to respond to any such request
in a timely manner shall be deemed to be a refusal to extend the Tranche B
Termination Date.
SECTION 2.16. Lending Office. The Loans of each Class and Type made by the
Bank shall be made and maintained at the Bank's Applicable Lending Office for
Loans of such Class and Type.
(16)
ARTICLE III
CHANGE IN CIRCUMSTANCES
SECTION 3.01. Increased Cost and Reduced Return.
(a) If on or after the date hereof, the Bank shall have reasonably
determined that the adoption on or after the date hereof of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change on or after the date hereof in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive on or after the date hereof (whether or not having the
force of law) of any such Governmental Authority:
(i) shall change the basis of taxation of any amounts payable to
the Bank under this Agreement or the Tranche A Note or Tranche
B Note in respect of any Eurodollar Loans (other than taxes
imposed on the overall net income of the Bank or its
Applicable Lending Office by the jurisdiction in which the
Bank has its Principal Office or such Applicable Lending
Office);
(ii) shall impose or modify any reserve, special deposit, or
similar requirement (other than the Eurodollar Reserve
Percentage utilized in the determination of Adjusted
Eurodollar Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or
commitments of, the Bank (including the Commitments); or
(iii) shall impose on the Bank (or its Applicable Lending Office) or
the London interbank market any other condition affecting this
Agreement or the Tranche A Note or Tranche B Note or any of
such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost
to the Bank (or its Applicable Lending Office) of making or
maintaining any Eurodollar Loans or to reduce any sum received
or receivable by the Bank under this Agreement or the Tranche
A Note or Tranche B Note with respect to Eurodollar Loans,
then the Borrower shall pay to the Bank on demand such amount
or amounts as will compensate the Bank for such increased cost
or reduction.
(b) If on or after the date hereof, the Bank shall have reasonably
determined that the adoption on or after the date hereof of any applicable law,
rule, or regulation regarding capital adequacy or any change therein on or after
the date hereof or in the interpretation or administration thereof on or after
the date hereof by any Governmental Authority charged with the interpretation or
administration thereof, or any request or directive on or after the date hereof
regarding capital adequacy (whether or not having the force of law) of any such
Governmental Authority, has the effect of reducing the rate of return on the
capital of the Bank as a consequence of the Bank's obligations hereunder to a
level below that which the Bank could have achieved but for such adoption,
change, request, or directive by an amount deemed by the Bank to be material,
then from time to time upon demand the Borrower shall pay to the Bank such
additional amount or amounts as will compensate the Bank for such reduction.
(17)
(c) The Bank will promptly notify the Borrower of any event or circumstance
of which it has knowledge, occurring after the date hereof, which will entitle
the Bank to compensation pursuant to Section 3.01(a) or Section 3.01(b) and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
reasonable judgment of the Bank, be otherwise disadvantageous to the Bank. A
certificate of the Bank claiming compensation under this Section and setting
forth in reasonable detail the basis for the claim shall be provided to the
Borrower with such notice. In determining such amount, the Bank may use any
reasonable averaging and attribution methods.
(d) The Bank shall not be entitled to claim compensation pursuant to
Section 3.01(a) or Section 3.01(b) for any increased cost, reduction in amounts
received or receivable, or reduction in rate of return (i) incurred or accrued
on or before the ninetieth (90th) day following the date that the Bank first
notifies the Borrower of the change in law or other circumstances on which such
claim is based, or (ii) incurred as a result of the fault of the Bank.
SECTION 3.02. Limitation on Eurodollar Loans. If on or prior to the first
day of any Interest Period for any Eurodollar Loan:
(a) the Bank reasonably determines that by reason of circumstances
affecting the London interbank market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Bank reasonably determines that the Adjusted Eurodollar Rate will
not adequately and fairly reflect the cost to the Bank of funding Eurodollar
Loans for such Interest Period;
then the Bank shall give the Borrower prompt notice thereof setting forth in
reasonable detail the basis for the Bank's determination and so long as such
condition remains in effect, the Bank shall be under no obligation to make
additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert CD Loans
into Eurodollar Loans and the Borrower shall, on the last day(s) of the then
current Interest Period(s) for the outstanding Eurodollar Loans, either prepay
such Loans or Convert such Loans into CD Loans in accordance with the terms of
this Agreement.
SECTION 3.03. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for the Bank to make, maintain,
or fund Eurodollar Loans hereunder, then the Bank shall promptly notify the
Borrower thereof and the Bank's obligation to make or Continue Eurodollar Loans
and to Convert CD Loans into Eurodollar Loans shall be suspended until such time
as the Bank may again make, maintain, and fund Eurodollar Loans and the Borrower
shall, on the last day of the Interest Period for each outstanding Eurodollar
Loan (or earlier, if required by law), either prepay such Loans or Convert such
Loans into CD Loans in accordance with the terms of this Agreement. In the event
that it becomes lawful for the Bank to make, maintain, or fund Eurodollar Loans,
the Bank shall give the Borrower prompt notice thereof.
(18)
SECTION 3.04. Compensation. Upon the request of the Bank, the Borrower
shall pay to the Bank such amount or amounts as shall be sufficient (in the
reasonable opinion of the Bank) to compensate it for any cost or expense
incurred by it as a result of:
(a) any payment, prepayment or Conversion of a Eurodollar Loan for any
reason (including, without limitation, the acceleration of the Loans pursuant to
Section 7.02) not the fault of the Bank on a date other than the last day of an
Interest Period for such Loan, provided, that the Borrower shall not be required
to compensate the Bank if the reason for such payment, prepayment or Conversion
relates to any of the circumstances described in Sections 3.01 or 3.03; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any conditions precedent specified in Article IV to
be satisfied) not the fault of the Bank to borrow, Convert, Continue, or prepay
a Eurodollar Loan on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Agreement, provided, that the Borrower
shall not be required to compensate the Bank if the reason for such failure to
borrow, Convert, Continue, or prepay relates to any of the circumstances
described in Sections 3.01, 3.02 or 3.03.
Without limiting the effect of the preceding sentence, such compensation
shall include any cost or expense incurred by the Bank in obtaining,
liquidating, or employing deposits from third parties.
(19)
ARTICLE IV
CONDITIONS
SECTION 4.01. Initial Tranche A Loan or Tranche B Loan. The effectiveness
of this Agreement and the obligation of the Bank to make the initial Tranche A
Loan or Tranche B Loan hereunder are subject to the satisfaction of the
following conditions:
(a) receipt by the Bank of the duly executed Tranche A Note, complying with
the provisions of Section 2.02(a);
(b) receipt by the Bank of the duly executed Tranche B Note, complying with
the provisions of Section 2.02(b);
(c) receipt by the Bank of the Guaranty duly executed by the Guarantors;
and
(d) receipt by the Bank of a certificate of the Secretary or Assistant
Secretary of each Loan Party, dated the date hereof and certifying (i) that
attached thereto is a true and complete copy of the corporate charter of such
Person and all amendments thereto, (ii) that attached thereto is a true and
complete copy of the by-laws of such Person and all amendments thereto, (iii)
that attached thereto is a true and complete copy of resolutions duly adopted by
the board of directors or the executive committee of the board of directors of
such Person authorizing the execution, delivery, and performance of the Loan
Documents to which such Person is or is intended to be a party, and that such
resolutions have not been modified, rescinded, or amended and are in full force
and effect, and (iv) as to the incumbency and specimen signature of each officer
of such Person executing the Loan Documents to which such Person is or is
intended to be a party and each other document to be delivered by such Person
from time to time in connection therewith (and the Bank may conclusively rely on
each such certificate until it receives notice in writing from such Person).
SECTION 4.02. Each Tranche A Loan or Tranche B Loan. The obligation of the
Bank to make any Tranche A Loan or Tranche B Loan (including the initial Tranche
A Loan or Tranche B Loan) is subject to the satisfaction of the following
conditions precedent:
(20)
(a) receipt by the Bank of a notice of borrowing in accordance with Section
2.08;
(b) the fact that immediately after the making of such Tranche A Loan or
Tranche B Loan, the aggregate outstanding principal amount of the Tranche A
Loans or Tranche B Loans (as the case may be) will not exceed the amount of the
Tranche A Commitment or the Tranche B Commitment (as the case may be);
(c) the fact that, immediately before and after such Loan, no Default shall
have occurred and be continuing; and
(d) the fact that the representations and warranties of the Loan Parties
contained in this Agreement and the other Loan Documents shall be true and
correct on and as of the date of such Loan.
Each borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such borrowing that the conditions precedent
specified in clauses (b), (c), and (d) of this Section have been satisfied.
SECTION 4.03. Term Loans. The obligation of the Bank to convert all or a
portion of the Tranche A Loan to a Term Loan pursuant to Section 2.01(c) is
subject to the satisfaction of the following conditions precedent:
(a) receipt by the Bank of a notice of conversion pursuant to Section
2.01(c);
(b) receipt by the Bank of a duly executed Term Note for such Loan, dated
the Term Loan Conversion Date for such Loan, complying with the provisions of
Section 2.02(c);
(c) if any Tranche A Loans will be outstanding after such conversion,
receipt by the Bank of a duly executed Tranche A Note, dated the Term Loan
Conversion Date for such Loan, complying with the provisions of Section 2.02(b);
(d) the fact that immediately before and after the conversion of all or
part of the Tranche A Loans to a Term Loan, no Default shall have occurred and
be continuing; and
(e) the fact that the representations and warranties of the Loan Parties
contained in this Agreement and the other Loan Documents shall be true and
correct on and as of the date of such conversion.
The conversion of all or part of the Tranche A Loans to a Term Loan
pursuant to Section 2.01(a) shall be deemed a representation and warranty by the
Borrower on the Term Loan Conversion Date for such Loan that the conditions
precedent specified in clauses (d) and (e) of this Section have been satisfied.
(21)
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, the Borrower represents
and warrants to the Bank that:
SECTION 5.01. Existence. The Borrower (a) is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
organization; and (b) has the requisite power and authority and legal right to
own its assets and carry on its business as now being or as proposed to be
conducted. The Borrower has the power, authority, and legal right to execute,
deliver, and perform its obligations under the Loan Documents.
SECTION 5.02. Financial Statements. The Financial Statements have been
prepared in accordance with GAAP, and fairly and accurately present the
financial condition of the Borrower and the Subsidiaries as of the respective
dates indicated therein and the results of operations for the respective periods
indicated therein. Since the effective date of the Financial Statements, no
event or condition has occurred that the Borrower expects will have a Material
Adverse Effect.
SECTION 5.03. Authorization; No Breach. The execution, delivery, and
performance by the Borrower of the Loan Documents to which it is a party and
compliance with the terms and provisions thereof have been duly authorized by
all requisite action on the part of the Borrower and do not: (a) violate or
conflict with, or result in a breach of, or require any consent under (i) the
articles of incorporation, bylaws, or other organizational documents of the
Borrower or any of the Material Subsidiaries, (ii) to the best of the Borrower's
knowledge, any applicable law, rule, or regulation or any order, writ,
injunction, or decree of any Governmental Authority or arbitrator, or (iii) any
agreement or instrument to which the Borrower or any of the Material
Subsidiaries is a party or by which any of them or any of their Property is
bound or subject; or (b) constitute a default, or result in the creation of a
Lien (other than Liens permitted by this Agreement), under any such agreement or
instrument. Neither the Borrower nor any Subsidiary is in default under any
indenture, mortgage, deed of trust, agreement, or instrument to which it is a
party or by which it may be bound and which is material to the financial
condition of the Borrower and its Subsidiaries on a consolidated basis.
(22)
SECTION 5.04. Litigation. There is no action, suit, investigation, or
proceeding before or by any Governmental Authority or arbitrator pending, or to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any Subsidiary, that the Borrower expects will have a Material Adverse Effect.
SECTION 5.05. Enforceability. This Agreement constitutes, and the other
Loan Documents when executed and delivered by the Borrower shall constitute, the
legal, valid, and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms, except as limited by
applicable Debtor Relief Laws and general principles of equity.
SECTION 5.06. Approvals. No authorization, approval, or consent of, and no
filing or registration with, any Governmental Authority or third party is or
will be necessary for the execution, delivery, or performance by the Borrower of
any of the Loan Documents to which it is a party or for the validity or
enforceability thereof.
SECTION 5.07. Compliance with Laws. The Borrower and its Subsidiaries are
in compliance in all material respects with all applicable laws, rules, and
regulations, other than such laws, rules, and regulations (i) the validity or
applicability of which the Borrower or such Subsidiary is contesting in good
faith by appropriate proceedings or (ii) failures to comply with which the
Borrower reasonably expects will not have a Material Adverse Effect.
SECTION 5.08. Ownership of Property; Liens. The Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as would not,
individually or in the aggregate, have a Material Adverse Effect. As of the date
of this Agreement, the property of the Borrower and its Subsidiaries is subject
to no Liens, other than Liens permitted by Section 6.03.
(23)
ARTICLE VI
COVENANTS
The Borrower agrees that, so long as the Bank has any Commitments hereunder
or any amount payable under the Notes remains unpaid, the Borrower:
SECTION 6.01. Information. Shall deliver to the Bank:
(a) within 90 days after the end of each fiscal year of the Borrower, the
Borrower's consolidated financial statements as of the end of such fiscal year
unless approval is granted by the Securities and Exchange Commission for later
filing of the Borrower's financial statements. Such financial statements shall
contain a consolidated balance sheet and related consolidated statements of
income and cash flows for such fiscal year setting forth in each case in
comparative form the figures for the previous fiscal year, all prepared in
accordance with GAAP and audited by the independent public accountants then
engaged by the Borrower.
(b) within 45 days after the end of the first three quarters of each fiscal
year of the Borrower, those financial reports which are required to be submitted
to the Securities and Exchange Commission quarterly unless approval is granted
by the Securities and Exchange Commission for later filing of the Borrower's
reports. Such quarterly reports shall contain a consolidated balance sheet and
related consolidated statements of income and cash flows and shall be signed by
the principal accounting officer of the Borrower as having been prepared in
accordance with GAAP (subject to normal year-end adjustments).
(c) within three (3) Business Days after any executive officer of the
Borrower obtains knowledge of any Default, a certificate of the chief financial
officer of the Borrower setting forth the details thereof and any action which
the Borrower is taking or proposes to take with respect thereto.
(d) within three (3) Business Days after the occurrence thereof, notice to
the Bank of any change in the individuals holding the positions of Chairman of
the Board or President of the Borrower; and
(e) from time to time such additional information regarding the financial
condition or business of the Borrower and the Subsidiaries as the Bank may
reasonably request.
(24)
SECTION 6.02. Fundamental Obligations. Shall, and shall cause each of the
Subsidiaries to:
(a) preserve and maintain all of its rights, privileges, and franchises
necessary or desirable in the normal conduct of its business, except where
failure to do the same could not reasonably be expected to have a Material
Adverse Effect.
(b) comply with the requirements of all applicable laws, rules, regulations
and orders of Governmental Authorities except for instances of non-compliance
that could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(c) pay and discharge when due all taxes, assessments, and governmental
charges or levies imposed on it or on its income or profits or any of its
Property, except for any such tax, assessment, charge, or levy the payment of
which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained and except where failure to do so
could not reasonably be expected to have a Material Adverse Effect.
(d) maintain all of its Properties owned or used in its business in good
working order and condition ordinary wear and tear excepted, except where
failure to so maintain such Properties could not reasonably be expected to have
a Material Adverse Effect.
(e) permit representatives of the Bank, during normal business hours, and
upon reasonable prior notice to the Borrower, to inspect its Properties, and to
discuss its business and affairs with its officers, directors and accountants.
(f) maintain insurance (which may include self insurance) in such amounts,
with such deductibles, and against such risks as is customary for similarly
situated businesses, except where failure to so maintain insurance could not
reasonably be expected to have a Material Adverse Effect.
SECTION 6.03. Liens. Shall not create, nor shall it permit any of its
Subsidiaries to directly or indirectly, incur, assume or suffer to exist, any
Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof, and any renewals or extensions
thereof, provided that the property covered thereby is not increased;
(c) Liens for taxes, assessments or charges (i) which are not yet
delinquent, (ii) which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP, or (iii) are not in the
aggregate material to the financial condition of the Borrower and its
Subsidiaries on a consolidated basis;
(25)
(d) carriers’, warehousemen’s, mechanics’,
materialmen’s, landlords' repairmen’s or other like Liens arising in
the ordinary course of business which (i) do not in the aggregate materially
impair the value or use of the related Properties or other assets in the conduct
of the Borrower's or any relevant Subsidiary's business, or (ii) are not in the
aggregate material to the financial condition of the Borrower and its
Subsidiaries on a consolidated basis;
(e) pledges, deposits or unsecured standby letters of credit (not including
any collateral pledged to the issuer of any letter of credit pursuant to such
issuer's contractual right to demand collateral upon the occurrence of certain
events or conditions occurring subsequent to the issuance of such letter of
credit (such collateral, "Default Collateral")) in the ordinary course of
business in connection with general liability, workers’ compensation,
unemployment insurance and other social security legislation;
(f) deposits or pledges to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which are not in the aggregate material to the financial
condition of the Borrower and its Subsidiaries on a consolidated basis;
(h) Liens securing judgments for the payment of money in an aggregate
amount not in excess of $25,000,000 (except to the extent covered by independent
third-party insurance as to which the insurer has acknowledged in writing its
obligation to cover), unless any such judgment remains undischarged for a period
of more than 60 consecutive days during which execution is not effectively
stayed (or execution has not been otherwise effectively suspended in accordance
with the laws of the relevant jurisdiction); and
(i) Liens arising from letters of credit issued for the account of Borrower
or any of its Subsidiaries in connection with the purchase of inventory and
equipment in the ordinary course of business; provided, however, that (i) this
Subparagraph (i) shall not apply to any Default Collateral, and (ii) Liens
arising under this Subparagraph (i) shall at no time exceed $250,000,000;
(j) Liens upon Property heretofore leased or leased after the date hereof
(under operating or capital leases) in the ordinary course of business by the
Borrower or any of its Subsidiaries in favor of the lessor created at the
inception of the lease transaction, securing obligations of the Borrower or any
of its Subsidiaries under or in respect of such lease and extending to or
covering only the Property subject to the lease (including without limitation
distribution center conveyors, racks and related equipment, and trailers to be
used in shipping operations); and
(k) Liens (other than Liens of the type permitted in Subparagaphs (a)
through (j) above (collectively, "Permitted Liens")) securing Debt, which do not
in the aggregate exceed 15.0% of Consolidated Net Worth (minus outstanding
Permitted Liens under Subparagraph (h) above) at any time.
(26)
SECTION 6.04. Leverage Ratio. The Borrower will not permit the Leverage
Ratio, at any time during any fiscal quarter to be greater than 0.50 to 1.0.
SECTION 6.05. Consolidated Fixed Charge Coverage Ratio. The Borrower will
not permit the Consolidated Fixed Charge Coverage Ratio, calculated as of the
end of each fiscal quarter of the Borrower for the four fiscal quarters of the
Borrower then most recently ended, to be less than 2.00 to 1.0.
SECTION 6.06. Disposition of Property. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease, assign, transfer, or otherwise
dispose of all or substantially all of its Properties (including the stock of
any Subsidiaries), whether in one transaction or a series of transactions;
provided that:
(a) the Borrower and its Subsidiaries may sell inventory in the ordinary
course of business;
(b) the Borrower and its Subsidiaries may sell, open, close, or lease
stores and distribution facilities and their related assets and may enter into
sale and leaseback transactions with respect to their stores and distribution
facilities and their related assets;
(c) any Subsidiary (other than a Guarantor) may transfer Property to
another Subsidiary or the Borrower; and
(d) any Guarantor may transfer Property to another Guarantor or the
Borrower.
SECTION 6.07. Mergers, Consolidations, Etc.
(a) The Borrower shall not (i) merge or consolidate with or into any other
Person unless the Borrower is the surviving corporation and no Default shall
exist immediately prior to or after giving effect to such merger or
consolidation, or (ii) dissolve, liquidate, or terminate its legal existence.
(b) The Borrower shall not (i) permit any Guarantor to merge or consolidate
with or into any Person unless a Guarantor or the Borrower is the surviving
corporation and no Default shall exist immediately prior to or after giving
effect to such merger or consolidation, or (ii) permit any Guarantor to
dissolve, liquidate, or terminate its legal existence (except as permitted in
clause (a)(i) or (b)(i) of this Section 6.07).
(27)
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default. Each of the following shall constitute an
"Event of Default":
(a) the Borrower shall fail to pay when due any principal of any Loan and
such failure shall continue for a period of three (3) Business Days after notice
thereof to the Borrower by the Bank.
(b) the Borrower shall fail to pay when due any interest on any Loan, any
fee, or any other amount payable under this Agreement and such failure shall
continue for a period of ten (10) days after notice thereof to the Borrower by
the Bank.
(c) any representation or warranty made (or deemed made pursuant to Section
4.02 or 4.03) in any Loan Document or in any certificate or financial statement
delivered pursuant hereto shall be false, misleading, or erroneous in any
material respect when made or so deemed made and such deficiency shall remain
unremedied for a period of ten (10) days after notice thereof shall have been
given by the Bank to the Borrower, or such additional periods as shall be
necessary to remedy such deficiency if the Borrower is proceeding in good faith
to remedy such deficiency and if the failure to remedy the deficiency within
said period of ten (10) days will not, in the reasonable determination of the
Bank, have a Material Adverse Effect.
(d) the Borrower shall fail to comply with Section 6.01(c).
(e) any Loan Party shall fail to perform, observe, or comply with any other
covenant, agreement, or term contained in any Loan Document (other than a
failure covered elsewhere in this Section 7.01) and such failure shall continue
for a period of thirty (30) days after notice thereof to such Loan Party by the
Bank.
(f) any Loan Party or any Material Subsidiary or Material Subsidiaries
shall admit in writing its or their inability to, or be generally unable to, pay
its or their debts as such debts become due.
(g) any voluntary or involuntary proceeding under any Debtor Relief Law
shall be commenced by or against any Loan Party or any Material Subsidiary or
Material Subsidiaries or any of their respective assets, and if an involuntary
proceeding is commenced, such proceeding shall not be dismissed within sixty
(60) days after the commencement thereof.
(h) any Loan Party or any Material Subsidiary or Material Subsidiaries
shall fail to pay when due any principal of or interest on any Debt (other than
the Notes) having an outstanding principal amount greater than $25,000,000 and
such failure shall continue for a period of ten (10) days, whether as principal
obligor, guarantor, or otherwise, or any event shall have occurred that permits
(after the passage of any applicable grace period) any holder or holders of such
Debt or any Person acting on behalf of such holder or holders to accelerate the
maturity thereof and such event shall continue for a period of ten (10) days.
(i) any judgment or order for the payment of money (not covered by
insurance where the insurer has confirmed coverage) in excess of $25,000,000
shall be rendered against any Loan Party or any Material Subsidiary or Material
Subsidiaries and such judgment or order shall continue unsatisfied and unstayed
(or execution thereof shall not have not been otherwise effectively suspended in
accordance with the laws of the relevant jurisdiction) for a period of sixty
(60) days.
(28)
(j) any Guarantor repudiates its obligations under the Guaranty or asserts
that the Guaranty is unenforceable, or the Guaranty ceases for any reason to be
enforceable and in full force and effect.
(k) each of the following events shall have occurred:
(i) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended)
(other than Xx. Xxxx Xxxxxx and his Family Members or an
investment manager acceptable to Bank in its sole discretion)
shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of 40% or more of the outstanding
shares of common stock of the Borrower;
(ii) Xx. Xxxx Xxxxxx and his Family Members collectively shall own
less than 15% of the outstanding shares of common stock of the
Borrower; and
(iii) one hundred fifty (150) days shall have elapsed from the date
that the events specified in clauses (i) and (ii) of this
paragraph (k) shall have occurred.
(l) any of the following events shall occur or exist with respect to any
member of the ERISA Group: (i) any prohibited transaction (as defined in
Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code)
involving any Plan; (ii) any reportable event (as defined in Section 4043 of
ERISA) with respect to any Plan; (iii) the filing under Section 4041 of ERISA of
a notice of intent to terminate any Plan or the termination of any Plan; (iv)
any event or circumstance that might constitute grounds entitling the PBGC to
institute proceedings under Section 4042 of ERISA for the termination of, or for
the appointment of a trustee to administer, any Plan, or the institution by the
PBGC of any such proceedings; (v) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived; or (vi) complete or
partial withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan
or the reorganization, insolvency, or termination of any Multiemployer Plan; and
in each case above, such event or condition, together with all other events or
conditions, if any, have subjected or could in the reasonable opinion of the
Bank subject the Borrower and its Subsidiaries to any tax, penalty, or other
liability to a Plan, a Multiemployer Plan, the PBGC, or otherwise (or any
combination thereof) which in the aggregate exceed or could reasonably be
expected to exceed $25,000,000.
(29)
SECTION 7.02. Remedies. If any Event of Default shall occur and be
continuing, the Bank may do any one or more of the following:
(a) Acceleration. Declare all outstanding principal of and accrued and
unpaid interest on the Notes and all other amounts payable by the Borrower under
the Loan Documents immediately due and payable, and the same shall thereupon
become immediately due and payable, without presentment, demand, protest, notice
of acceleration, notice of intent to accelerate, or other notices or formalities
of any kind, all of which are hereby expressly waived by the Borrower.
(b) Termination of Commitments. Terminate the Commitments without notice to
the Borrower.
(c) Rights. Exercise any and all rights and remedies afforded by applicable
law or otherwise.
Notwithstanding the foregoing, upon the occurrence of an Event of Default under
Section 7.01(g), the Commitments shall automatically terminate, and the
outstanding principal of and accrued and unpaid interest on the Notes and all
other amounts payable by the Borrower under the Loan Documents shall thereupon
become immediately due and payable without presentment, demand, protest, notice
of acceleration, notice of intent to accelerate, or other notices or formalities
of any kind, all of which are hereby expressly waived by the Borrower.
(30)
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, the Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Bank (or
any of its Affiliates) to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under the Loan Documents, irrespective of whether the Bank shall have made any
demand under the Loan Documents and although such obligations may be unmatured.
The Bank agrees promptly to notify the Borrower after any such set-off and
application made by the Bank; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Bank under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that the Bank may have.
SECTION 8.02. No Waiver; Cumulative Remedies. No failure on the part of the
Bank to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power, or privilege under any Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power, or privilege under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in the Loan Documents are cumulative and not
exclusive of any rights and remedies provided by law.
SECTION 8.03. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the Bank.
The Bank may at any time and from time to time (a) grant participating interests
in the Commitments and the Loans to any Person(s), and (b) assign all or any
portion of its rights and/or obligations under the Loan Documents to any
Person(s); provided, that the Bank may not assign its Commitments to any Person
(other than an Affiliate of the Bank) without the prior written consent of the
Borrower. All information provided by the Borrower to the Bank may be furnished
by the Bank to its Affiliates and to any actual or proposed assignee or
participant, provided that any actual or proposed assignee or participant agrees
to be bound by the provisions of Section 8.14.
SECTION 8.04. Amendments. No amendment or waiver of any provision of any
Loan Document to which the Borrower is a party, nor any consent to any departure
by the Borrower therefrom, shall be effective unless the same shall be agreed or
consented to in writing by the Bank and the Borrower, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 8.05. Notices. All notices, requests, and other communications to
either party hereunder shall be in writing (including bank wire, facsimile
transmission, or similar writing) and shall be given to such party at its
address or facsimile number set forth on the signature pages hereof. Each such
notice, request, or other communication shall be effective when received.
(31)
SECTION 8.06. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 8.07. Severability. Any provision of this Agreement held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be invalid or illegal.
SECTION 8.08. Controlling Agreement. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable law (the "Maximum Rate"). If the Bank shall
receive interest in an amount that exceeds the Maximum Rate, the excessive
interest shall be applied to the principal of the Loans or, if it exceeds the
unpaid principal, refunded to the Borrower.
SECTION 8.09. Indemnification. Each party to this Agreement against which a
claim, demand, action or cause of action (each, a "Claim") is asserted (in such
capacity, an "Indemnitor"), and only to the extent that such Claim arises out of
actions taken by such Indemnitor in connection with the Loan Documents, any
predecessor loan documents, the Commitments, the use or contemplated use of the
proceeds of any Loan, or the relationship of any Loan Party and the Bank under
this Agreement or any other Loan Document, agrees to indemnify, save and hold
harmless the other parties, their respective Affiliates, and their respective
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the “Indemnitees”) from and against: (a) any and all
Claims that are asserted against any Indemnitee by any Person relating directly
or indirectly to a Claim that such Person asserts or may assert against the
Indemnitor, any Affiliate of an Indemnitor or any of their respective officers
or directors; (b) any and all Claims that may at any time be asserted or imposed
against any Indemnitee; (c) any administrative or investigative proceeding by
any Governmental Authority arising out of or related to a Claim; and (d) any and
all liabilities (including liabilities under indemnities), losses, costs or
expenses (including reasonable attorney fees and expenses) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing Claim, or as a
result of the preparation of any defense in connection with any foregoing Claim
(including without limitation any subpoena, court order, interrogatory or
administrative investigation), and whether or not an Indemnitee is a party to
such Claim (all the foregoing, collectively, the “Indemnified
Liabilities”); provided that no Indemnitee shall be entitled to
indemnification for any Claim caused by its own negligence or willful misconduct
or for any loss asserted against it by another Indemnitee; and, provided
further, that, to the extent that any Claim is brought by or relates to a Person
that is not a party to this Agreement or any other Loan Document, the Indemnitor
shall be permitted to defend such claim, demand, action or cause of action using
professional advisors chosen by the Indemnitor, subject to the approval of the
Indemnitee(s) which shall not be unreasonably withheld or delayed. The
agreements in this Section shall survive the termination of the Commitments and
repayment of all the Loans and other obligations of the Loan Parties hereunder.
(32)
SECTION 8.10. Survival. All representations and warranties made or deemed
made by the Borrower in the Loan Documents shall survive the execution and
delivery thereof and the making of the Loans, and no investigation by the Bank
or any closing shall affect the representations and warranties by the Borrower
or the right of the Bank to rely upon them. Without prejudice to the survival of
any other obligation of the Borrower hereunder, the obligations of the Borrower
and the Bank under Article III shall survive repayment of the Notes and
termination of the Commitments.
SECTION 8.11. Governing Law. This Agreement and the Notes shall be governed
by and construed in accordance with, the law of the State of North Carolina and
the applicable laws of the United States of America. The Borrower and the Bank
hereby submit to the nonexclusive jurisdiction of the United States District
Court and each state court in Charlotte, North Carolina for the purposes of all
legal proceedings arising out of or relating to any of the Loan Documents or the
transactions contemplated thereby. The Borrower and the Bank irrevocably consent
to the service of any and all process in any such action or proceeding by the
mailing of copies of such process to the Borrower or the Bank, as the case may
be, at its address set forth underneath its signature hereto. The Borrower and
the Bank irrevocably waive, to the fullest extent permitted by law, any
objection which either of them may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
SECTION 8.12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
SECTION 8.13. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
SECTION 8.14. Confidentiality. The Bank agrees, with respect to any
non-public information delivered or made available by the Borrower to the Bank,
to maintain the confidentiality of such information. Nothing herein shall
prevent the Bank from disclosing such information (i) to its Affiliates,
officers, directors, employees, agents, attorneys, and accountants, provided
that each such Person shall be informed of, and directed to abide by, the terms
of this Section 8.14, (ii) upon the order, request, or demand of any court or
other Governmental Authority (other than bank regulatory authorities having
jurisdiction over the Bank); provided, that the Bank will furnish to the
Borrower prompt notice of any such request or demand as far in advance of such
disclosure as may be reasonably practicable so that the Borrower may, at the
Borrower's expense, seek an appropriate protective order, (iii) to bank
regulatory authorities having jurisdiction over the Bank, (iv) which has been
publicly disclosed, (v) to the extent reasonably required in connection with any
litigation to which the Bank, the Borrower, or their respective Affiliates may
be a party, provided that the Bank shall give the Borrower reasonable prior
notice of such disclosure by the Bank or any of its Affiliates, (vi) to the
extent reasonably required in connection with the exercise by the Bank of any
remedy hereunder, provided that the Bank shall give the Borrower reasonable
prior notice of such disclosure, and (vii) with the prior written consent of
Borrower.
(33)
SECTION 8.15. Restatement. This Agreement amends and restates in its
entirety the Existing Credit Agreement. The Tranche A Note shall renew and
extend but not extinguish the indebtedness evidenced by the Existing Tranche A
Note. The Tranche B Note shall renew and extend but not extinguish the
indebtedness evidenced by the Existing Tranche B Note.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
BORROWER:
FAMILY DOLLAR STORES, INC. FAMILY DOLLAR, INC.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------------------
XXXXXX X. XXXXXX XXXXXX X. XXXXXX
President President
Address for Notices: Address for Notices:
Family Dollar Stores, Inc. Family Dollar, Inc.
P. O. Box 1017 P. O. Box 1017
Charlotte, N. C 28201-1017 Charlotte, N. C. 28201-1017
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attn: Sr. Vice President – Finance Attn: Sr. Vice President – Finance
(signatures continued --)
BANK:
BANK OF AMERICA, N.A.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
XXXXXXX X. XXXXXX
Managing Director
Lending Office for CD Loans and Eurodollar Loans:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, X. C. 28255-0065
Address for Notices:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
NC1-007-16-11
Charlotte, N. C. 28255-0065
Facsimile No.: (000) 000-0000
Attention: Portfolio Management – Retail
(34)
___________________
EXHIBIT A-1
TRANCHE A NOTE
$75,000,000 May 31, 2001
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR STORES, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A. (the "Bank"), at the Principal Office, in lawful money of the
United States of America, the principal amount of SEVENTY-FIVE AND 00/100
MILLION DOLLARS ($75,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche A Loans made by the Bank to the Borrower
under the Credit Agreement referred to below, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Tranche A Loan, at such office, in like money, for
the period commencing on the date of such Tranche A Loan until such Tranche A
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The books and records of the Bank shall be prima facie evidence of all
amounts outstanding hereunder.
This Note is the Tranche A Note referred to in the Credit Agreement of even
date herewith, between the Borrower and the Bank (such Credit Agreement, as the
same may be amended, modified, or supplemented from time to time, being referred
to herein as the "Credit Agreement"), and evidences Tranche A Loans made by the
Bank thereunder. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events and for prepayments of Tranche A Loans prior to the maturity of
this Note upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
This Note amends and restates in its entirety that certain Amended and
Restated Tranche A Note dated December 31, 1997 in the amount of $50,000,000
executed by Borrower in favor of Bank (the “Prior Note”). The
indebtedness evidenced by this Note is continuing indebtedness, and nothing
herein, or in the Credit Agreement shall be deemed to constitute a payment,
settlement or novation of the Prior Note. All amounts outstanding under the
Prior Note as of the date of this Note shall be deemed amounts outstanding
hereunder.
This Note shall be governed by and construed in accordance with the laws of
the State of North Carolina and the applicable laws of the United States of
America.
FAMILY DOLLAR STORES, INC.
By: ______________________________________
Title:____________________________________
(A-1)
___________________
EXHIBIT A-2
TRANCHE A NOTE
$75,000,000 May 31, 2001
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR, INC., a North Carolina
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A. (the "Bank"), at the Principal Office, in lawful money of the
United States of America, the principal amount of SEVENTY-FIVE AND 00/100
MILLION DOLLARS ($75,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche A Loans made by the Bank to the Borrower
under the Credit Agreement referred to below, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Tranche A Loan, at such office, in like money, for
the period commencing on the date of such Tranche A Loan until such Tranche A
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The books and records of the Bank shall be prima facie evidence of all
amounts outstanding hereunder.
This Note is the Tranche A Note referred to in the Credit Agreement of even
date herewith, between the Borrower and the Bank (such Credit Agreement, as the
same may be amended, modified, or supplemented from time to time, being referred
to herein as the "Credit Agreement"), and evidences Tranche A Loans made by the
Bank thereunder. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events and for prepayments of Tranche A Loans prior to the maturity of
this Note upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
This Note amends and restates in its entirety that certain Amended and
Restated Tranche A Note dated December 31, 1997 in the amount of $50,000,000
executed by Borrower in favor of Bank (the “Prior Note”). The
indebtedness evidenced by this Note is continuing indebtedness, and nothing
herein, or in the Credit Agreement shall be deemed to constitute a payment,
settlement or novation of the Prior Note. All amounts outstanding under the
Prior Note as of the date of this Note shall be deemed amounts outstanding
hereunder.
This Note shall be governed by and construed in accordance with the laws of
the State of North Carolina and the applicable laws of the United States of
America.
FAMILY DOLLAR, INC.
By: ______________________________________
Title:____________________________________
(A-2)
___________________
EXHIBIT B-1
TRANCHE A NOTE
$75,000,000 May 31, 2001
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR STORES, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A. (the "Bank"), at the Principal Office, in lawful money of the
United States of America, the principal amount of SEVENTY-FIVE MILLION AND
00/100 DOLLARS ($75,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche B Loans made by the Bank to the Borrower
under the Credit Agreement referred to below, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Tranche B Loan, at such office, in like money, for
the period commencing on the date of such Tranche B Loan until such Tranche B
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The books and records of the Bank shall be prima facie evidence of all
amounts outstanding hereunder.
This Note is the Tranche B Note referred to in the Credit Agreement of even
date herewith, between the Borrower and the Bank (such Credit Agreement, as the
same may be amended, modified, or supplemented from time to time, being referred
to herein as the "Credit Agreement"), and evidences Tranche B Loans made by the
Bank thereunder. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events and for prepayments of Tranche B Loans prior to the maturity of
this Note upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
This Note amends and restates in its entirety that certain Amended and
Restated Tranche B Note dated December 31, 1997 in the amount of $50,000,000
executed by Borrower in favor of Bank (the “Prior Note”). The
indebtedness evidenced by this Note is continuing indebtedness, and nothing
herein, or in the Credit Agreement shall be deemed to constitute a payment,
settlement or novation of the Prior Note. All amounts outstanding under the
Prior Note as of the date of this Note shall be deemed amounts outstanding
hereunder.
This Note shall be governed by and construed in accordance with the laws of
the State of North Carolina and the applicable laws of the United States of
America.
FAMILY DOLLAR STORES, INC.
By: ______________________________________
Title:____________________________________
(B-1)
___________________
EXHIBIT B-2
TRANCHE A NOTE
$75,000,000 May 31, 2001
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR, INC., a North Carolina
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A. (the "Bank"), at the Principal Office, in lawful money of the
United States of America, the principal amount of SEVENTY-FIVE MILLION AND
00/100 DOLLARS ($75,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche B Loans made by the Bank to the Borrower
under the Credit Agreement referred to below, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Tranche B Loan, at such office, in like money, for
the period commencing on the date of such Tranche B Loan until such Tranche B
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The books and records of the Bank shall be prima facie evidence of all
amounts outstanding hereunder.
This Note is the Tranche B Note referred to in the Credit Agreement of even
date herewith, between the Borrower and the Bank (such Credit Agreement, as the
same may be amended, modified, or supplemented from time to time, being referred
to herein as the "Credit Agreement"), and evidences Tranche B Loans made by the
Bank thereunder. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events and for prepayments of Tranche B Loans prior to the maturity of
this Note upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
This Note amends and restates in its entirety that certain Amended and
Restated Tranche B Note dated December 31, 1997 in the amount of $50,000,000
executed by Borrower in favor of Bank (the “Prior Note”). The
indebtedness evidenced by this Note is continuing indebtedness, and nothing
herein, or in the Credit Agreement shall be deemed to constitute a payment,
settlement or novation of the Prior Note. All amounts outstanding under the
Prior Note as of the date of this Note shall be deemed amounts outstanding
hereunder.
This Note shall be governed by and construed in accordance with the laws of
the State of North Carolina and the applicable laws of the United States of
America.
FAMILY DOLLAR, INC.
By: ______________________________________
Title:____________________________________
(B-2)
___________________
EXHIBIT C
TERM NOTE
$______________ May 31, 2001
FOR VALUE RECEIVED, the undersigned, [FAMILY DOLLAR STORES, INC., a
Delaware corporation] [FAMILY DOLLAR, INC., a North Carolina corporation]1 (the
"Borrower"), hereby promises to pay to the order of BANK OF AMERICA, N.A. (the
"Bank"), at the Principal Office, in lawful money of the United States of
America, the principal amount of ________ Dollars ($________), together with
interest on the outstanding principal balance as specified herein.
The outstanding principal of this Note shall be payable in _______ (____)
installments of principal as follows:
(a) two (2) installments of principal each in the amount of
$____________ shall be payable on ________, and _____;
(b) __________ (_____) installments of principal each in the amount of
__________ Dollars (_______), shall be due and payable, the first such
installment to be due and payable on ________, with like successive
installments of principal to be due and payable on the last day of each
[insert dates] thereafter until and including ______; and thereafter
(c) a final installment in the amount of all outstanding principal of
this Note shall be due and payable on _______.
The outstanding principal of this Note shall bear interest at the rates per
annum provided in the Credit Agreement. Accrued and unpaid interest on this Note
shall be payable on each ________, ______, _______, and ________ of each year,
commencing on ___________, and at maturity.
The books and records of the Bank shall be prima facie evidence of all
amounts outstanding hereunder.
This Note is a Term Note referred to in the Credit Agreement dated May 31,
2001, between the Borrower (as defined in such Credit Agreement) and the Bank
(such Credit Agreement, as the same may be amended, modified, or supplemented
from time to time, being referred to herein as the "Credit Agreement"), and
evidences a Term Loan thereunder. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity of this Note upon the
happening of certain stated events and for prepayments of the Term Loan
evidenced hereby prior to the maturity of this Note upon the terms and
conditions specified in the Credit Agreement. Capitalized terms used in this
Note have the respective meanings assigned to them in the Credit Agreement.
This Note shall be governed by and construed in accordance with the laws of
the State of North Carolina and the applicable laws of the United States of
America.
[FAMILY DOLLAR STORES, INC.]
[FAMILY DOLLAR, INC.]1
By: ______________________________________
Title:____________________________________
(C-3)
___________________
EXHIBIT D
FORM OF GUARANTEE AGREEMENT
AMENDED AND RESTATED
GUARANTEE AGREEMENT
AMENDED AND RESTATED GUARANTEE AGREEMENT (this "Agreement") dated as of May
31, 2001, is executed by Family Dollar Services, Inc., a North Carolina
corporation, Family Dollar Operations, Inc., a North Carolina corporation, and
Family Dollar Trucking, Inc., a North Carolina corporation (each a "Guarantor"
and collectively the "Guarantors") in favor of Bank of America, N.A., a national
banking association (the "Bank").
WHEREAS, Family Dollar Stores, Inc., a Delaware corporation ("FDSI") and
Family Dollar, Inc., a North Carolina corporation ("FDI") (FDSI and FDI,
collectively, the "Borrower"), are parties to that certain Credit Agreement with
NationsBank, N.A. (predecessor in interest to the Bank) dated as of March 31,
1996, as amended from time to time, pursuant to which the Bank has provided
financing in a total amount of up to $100,000,000.
WHEREAS, in connection with the Prior Credit Agreement, the Guarantors
executed that certain Guarantee Agreement dated as of March 31, 1996 in favor of
the Bank (the "Prior Guarantee"); and
WHEREAS, the Borrower and the Bank have amended and restated the Prior
Credit Agreement, as evidenced by that certain Amended and Restated Credit
Agreement, dated as of May 31, 2001, between the Borrower and the Bank (such
Credit Agreement, as the same may be amended, restated, modified, or
supplemented, being hereinafter referred to as the "Credit Agreement"); and
WHEREAS, the Guarantors and the Bank wish to amend and restate the Prior
Guarantee to reflect the Credit Agreement; and
WHEREAS, in order to induce the Bank to enter into the Credit Agreement,
the Guarantors are willing to guarantee the obligations of the Borrower under
the Loan Documents (as defined in the Credit Agreement); and
WHEREAS, the execution and delivery of this Agreement by the Guarantors is
a condition to the willingness of the Bank to enter into the Credit Agreement;
and
WHEREAS, the ability of the Borrower to borrow from time to time under the
Credit Agreement will benefit the Guarantors directly and indirectly; and
(D-1)
WHEREAS, each Guarantor has determined, reasonably and in good faith, that
it is solvent, it has adequate capital to conduct its business as presently
conducted and as proposed to be conducted, and that it will be able to meet its
obligations hereunder and in respect of its other existing and future
indebtedness and liabilities as and when the same shall be due and payable; and
WHEREAS, each Guarantor has determined that the execution and delivery of
this Agreement are to its advantage and benefit, having regard to all relevant
facts and circumstances;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein as therein defined.
2. The Guarantors hereby jointly, severally, unconditionally, and
irrevocably guarantee to the Bank and its successors and assigns, the full and
punctual payment of all present and future amounts payable by the Borrower
pursuant to the Loan Documents, including, but not limited to, the full and
punctual payment of all principal of and interest on the Notes (whether at
maturity, by declaration or otherwise). The indebtedness guaranteed hereunder
shall include any and all post-petition interest (including reasonable
attorneys' fees) whether or not allowed under any bankruptcy, insolvency, or
other similar law. Upon any failure by the Borrower to pay when due any amount
guaranteed hereunder, the Guarantors hereby jointly, severally and
unconditionally agree to forthwith on demand pay such amount as and when the
same shall become due and payable, whether at maturity or by declaration or
otherwise.
3. Each Guarantor's obligations hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing shall not be
released, discharged, impaired, or otherwise affected by any of the following,
whether or not with notice to or the consent of such Guarantor:
(a) any extension, renewal, settlement, compromise, indulgence, waiver or
release in respect of any obligation of the Borrower or any other Loan Party
under any of the Loan Documents, by operation of law or otherwise;
(b) any modification or amendment of or supplement to any of the Loan
Documents;
(c) any release, exchange, impairment, non-perfection or invalidity of any
direct or indirect security, or of any guarantee or other liability of any third
party for any obligation of the Borrower or any other Loan Party under any of
the Loan Documents;
(D-2)
(d) any change in the corporate existence, structure or ownership of the
Borrower or any other Loan Party, or any insolvency, bankruptcy or other similar
proceeding affecting the Borrower or any other Loan Party or any of their
respective assets or any resulting release or discharge of any obligation of the
Borrower or any other Loan Party contained in the Loan Documents;
(e) the existence of any claim, set-off or other rights which such
Guarantor may have at any time against the Bank, the Borrower, any other Loan
Party or any other Person whether in connection herewith or any unrelated
transactions; provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(f) the invalidity or unenforceability of any Loan Document; or
(g) any other act or omission to act or delay of any kind by the Bank, the
Borrower, any other Loan Party, or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of such Guarantor's obligations hereunder.
Each Guarantor hereby waives the benefits of North Carolina General
Statutes, Sections 26-7 through 26-9 inclusive.
4. The obligations of each Guarantor hereunder shall be limited to an
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or to being set aside or annulled under any applicable
state law relating to fraud on creditors.
5. Each Guarantor's obligations hereunder shall remain in full force and
effect until the Commitments shall have terminated and all principal of and
interest on the Notes and all other amounts payable by the Borrower under the
Loan Documents shall have been paid in full.
6. If at any time any payment of any amount payable by the Borrower is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, each Guarantor's
obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
7. The Guarantors irrevocably waive acceptance hereof, presentment, demand,
protest, notice of the incurring by the Borrower of indebtedness under the Loan
Documents, and any notice not expressly provided for herein, as well as any
requirement that at any time any action be taken against the Borrower, any other
Loan Party, or any other Person or against any direct or indirect security for
any obligation or liability of the Borrower under the Loan Documents.
(D-3)
8. Upon making any payment with respect to the Borrower under the Loan
Documents, the relevant Guarantor shall be subrogated to the rights of the Bank
against the Borrower with respect to such payment; provided that such Guarantor
shall not enforce any payment by way of subrogation, contribution, indemnity, or
otherwise until the Commitments have terminated and all principal of and
interest on the Notes and all other amounts payable by the Borrower under the
Loan Documents have been paid in full.
9. If acceleration of the time for payment of any amount that is guaranteed
hereunder is stayed or demand for payment of any such amount is precluded upon
the insolvency, bankruptcy or reorganization of the Borrower (determined without
regard to whether a court might act favorably on a request for relief from any
such stay or other preclusion), all such amounts otherwise subject to
acceleration under the terms of the Loan Documents shall nonetheless be payable
by each Guarantor hereunder forthwith on demand by the Bank.
10. Each Guarantor hereby represents and warrants to the Bank that:
(a) such Guarantor is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its organization; and (b) has the
requisite power and authority and legal right to own its assets and carry on its
business as now being or as proposed to be conducted. Such Guarantor has the
power, authority, and legal right to execute, deliver, and perform its
obligations under this Agreement.
(b) the execution, delivery, and performance by such Guarantor of this
Agreement and compliance with the terms and provisions hereof have been duly
authorized by all requisite action on the part of such Guarantor and do not (a)
violate or conflict with, or result in a breach of, or require any consent under
(i) the articles of incorporation, bylaws, or other organizational documents of
such Guarantor, (ii) to the best of such Guarantor's knowledge, any applicable
law, rule, or regulation or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator, or (iii) any agreement or instrument to
which such Guarantor is a party or by which it or any of its Property is bound
or subject, or (b) constitute a default under any such agreement or instrument.
(c) this Agreement constitutes the legal, valid, and binding obligation of
such Guarantor, enforceable against such Guarantor in accordance with its terms,
except as limited by applicable Debtor Relief Laws and general principles of
equity.
(d) no authorization, approval, or consent of, and no filing or
registration with, any Governmental Authority or third party is or will be
necessary for the execution, delivery, or performance by such Guarantor of this
Agreement or for the validity or enforceability thereof.
(e) the statements set forth in the recitals hereto are true and correct
with respect to such Guarantor.
(D-4)
11. Effective upon the occurrence and during the existence of an Event of
Default, any and all indebtedness of the Borrower to the Guarantors, or any of
them, now or hereafter existing, together with any interest thereon, shall be,
and such indebtedness is, hereby deferred, postponed and subordinated to the
prior payment in full of all amounts guaranteed hereunder. If an Event of
Default shall exist, the Guarantors agree not to accept any payment or
satisfaction of any kind of indebtedness of the Borrower to the Guarantors, or
any of them, and hereby assign all such indebtedness to the Bank, including the
right to file proof of claim and to vote thereon in connection with any case by
or against the Borrower under the United States Bankruptcy Code and the right to
vote on any plan of reorganization thereunder.
12. All notices, requests, demands and other communications to or from the
parties hereto shall be in writing (including telecopy or similar writing) and
shall be given to such party: (x) in the case of any Guarantor, at the address
or telecopier number set forth on the signature pages hereof, and (y) in the
case of the Bank, at its address or telecopy number set forth on the signature
pages of the Credit Agreement. Each such notice, request or other communication
shall be effective when received.
13. This Agreement shall be binding upon each of the Guarantors and their
respective successors and assigns, and shall inure to the benefit of the Bank
and its successors and assigns. No Guarantor may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Bank.
14. None of the terms of this Agreement may be waived, altered or amended
except by an instrument in writing duly executed by each Guarantor and the Bank.
No failure or delay on the part of the Bank in exercising any right, power, or
privilege under any of Loan Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power, or privilege under any
of the Loan Documents preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The rights and remedies
provided in and contemplated by this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
15. This Agreement shall be construed in accordance with and governed by
the laws of the State of North Carolina.
16. Each Guarantor and the Bank hereby submits to the nonexclusive
jurisdiction of the United States District Court or any North Carolina State
court sitting in Charlotte, North Carolina for purposes of all legal proceedings
arising out of or relating to the Loan Documents or the transactions
contemplated hereby. Each Guarantor and the Bank irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW EACH
OF THE GUARANTORS AND THE BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
(D-5)
17. This Agreement is an absolute, present and continuing guarantee of
payment and not of collection. Each Guarantor agrees that the Bank may enforce
this Agreement without the necessity of resorting to or exhausting any security
or collateral and without the necessity of proceeding against the Borrower or
any other Loan Party.
18. Each Guarantor agrees that nothing contained herein shall prevent the
Bank from suing on the Loan Documents or from exercising any rights available to
the Bank, thereunder and that the exercise of any of the aforesaid rights shall
not constitute a legal or equitable discharge of any Guarantor. Each Guarantor
hereby authorizes and empowers the Bank to exercise, in its sole discretion, any
rights and remedies, or any combination thereof, which may then be available to
the Bank, since it is the intent and purpose of each Guarantor that its
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances.
19. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
20. This Agreement supersedes, amends and restates in its entirety the
Prior Guarantee delivered by the Guarantors in connection with the Prior Credit
Agreement.
IN WITNESS WHEREOF, each of the undersigned have caused this Guarantee
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written
FAMILY DOLLAR SERVICES, INC.
By: ______________________________________
Name:_____________________________________
Title:____________________________________
Address for Notices:
Family Dollar Services, Inc.
P. O. Box 1017
Charlotte, N. C. 28201-1017
Facsimile No.: (000) 000-0000
Attention:
(D-6)
(signatures continued --)
FAMILY DOLLAR OPERATIONS, INC.
By: ______________________________________
Name:_____________________________________
Title:____________________________________
Address for Notices:
Family Dollar Operations, Inc.
Family Dollar Services, Inc.
P. O. Box 1017
Charlotte, N. C. 28201-1017
Facsimile No.: (000) 000-0000
Attention:
FAMILY DOLLAR TRUCKING, INC.
By:_______________________________________
Name: ____________________________________
Title:____________________________________
Address for Notices:
Family Dollar Trucking, Inc.
P. O. Box 1017
Charlotte, N. C. 28201-1017
Facsimile No.: (000) 000-0000
Attention:
(D-7)
1 Insert appropriate Borrower name.
