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EXHIBIT 10.1
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EXHIBIT 10.1
LOAN AGREEMENT
FIRST UNION NATIONAL BANK
0 XXXXXXX XXXXX
XXXXXXXXXX, XXXXX XXXXXXXX 00000
(Hereinafter referred to as the "Bank")
RSI HOLDINGS, INC.
00 XXXX XXXXX XXXXXX
XXXXXXXXXX, XXXXX XXXXXXXX 00000
(individually and collectively, "Borrower")
This Loan Agreement ("Agreement") is entered into this 30 day of April 1999, by
and between Bank and RSI HOLDINGS, INC., a corporation organized under the laws
of the State of North Carolina.
Borrower has applied to Bank for a loan or loans (individually and collectively,
the "Loan") evidenced by one or more promissory notes (whether one or more, the
"Note") as follows:
Revolver - in the principal amount of $500,000.00, which is
evidenced by the Promissory Note, dated of even date herewith.
The Loan proceeds are to be used by Borrower solely for
venture capital.
This Agreement applies to the loan and all Loan Documents. The terms "Loan
Documents" and "Obligations," as used in this Agreement, are defined in the
Note. The term "Borrower" shall include its Subsidiaries and Affiliates. As used
in this Agreement as to Borrower, "Subsidiary" shall mean any corporation of
which more than 50% of the issued and outstanding voting stock is owned directly
or indirectly by Borrower. As to Borrower, "Affiliate" shall have the meaning as
defined in 11 U.S.C. ss. 101, except that the term "debtor" therein shall be
substituted by the term "Borrower" herein.
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank and Borrower agree as
follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: Accurate Information. All
information now and hereafter furnished to Bank is and will be true, correct and
complete. Any such information relating to Borrower's financial condition will
accurately reflect Borrower's financial condition as of the date(s) thereof,
(including all contingent liabilities of every type, and Borrower further
represents that its financial condition has not changed materially or adversely
since the date(s) of such documents. Authorization; Non-Contravention. The
execution, delivery and performance by Borrower and any guarantor, as
applicable, of this Agreement and other Loan Documents to which it is a party
are within its power, have been duly authorized by all necessary action taken by
the duly authorized officers of Borrower and any guarantors and if necessary, by
making appropriate filings with any governmental agency or unit and are the
legal, binding, valid and enforceable obligations of Borrower and any
guarantors; and do not (i) contravene, or constitute (with or without the giving
of notice or lapse of time or both) a violation of any provision of applicable
law, a violation of the organizational documents of Borrower or any guarantor,
or a default under any agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting Borrower or any guarantor, (ii) result in
the creation or imposition of any lien (other than the lien(s) created by the
Loan Documents) on any of Borrower's or guarantor's assets, or (iii) give cause
for the acceleration of any obligations of Borrower or any guarantor to any
other creditor. Asset Ownership. Borrower has good and marketable title to all
of the properties and assets reflected on the balance sheets and financial
statements supplied Bank by Borrower, and all such properties and assets are
free and clear of mortgages, security deeds, pledges, liens, charges, and all
other encumbrances, except as otherwise disclosed to Bank by Borrower in writing
("Permitted Liens"). To borrowers knowledge, no default has occurred under any
Permitted Liens and no claims or
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interests adverse to Borrower's present rights in its properties and assets have
arisen. Discharge of Liens and Taxes. Borrower has duly filed, paid and/or
discharged all taxes or other claims which may become a lien on any of its
property or assets, except to the extent that such items are being appropriately
contested in good faith and an adequate reserve for the payment thereof is being
maintained. Sufficiency of Capital. Borrower is not, and after consummation of
this Agreement and after giving effect to all indebtedness incurred and liens
created by Borrower in connection with the Loan, will not be insolvent within
the meaning of 11 U.S.C. ss. 101 (32). Compliance with Laws. Borrower is in
compliance in all respects with all federal, state and local laws, rules and
regulations applicable to its properties, operations, business, and finances,
including, without limitation, any federal or state laws relating to liquor
(including 18 U.S.C. ss. 3617 et seq.) or narcotics (including 21 U.S.C. ss. 801
et seq.) and/or any commercial crimes; all applicable federal, state and local
laws and regulations intended to protect the environment; and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable.
Organization and Authority. Each corporate or limited liability company Borrower
and any guarantor, as applicable, is duly created, validly existing and in good
standing under the laws of the state of its organization, and has all powers,
governmental licenses, authorizations, consents and approvals required to
operate its business as now conducted. Each corporate or limited liability
company Borrower and any guarantor, if any, is duly qualified, licensed and in
good standing in each jurisdiction where qualification or licensing is required
by the nature of its business or the character and location of its property,
business or customers, and in which the failure to so qualify or be licensed, as
the case may be, in the aggregate, could have a material adverse effect on the
business, financial position, results of operations, properties or prospects of
Borrower or any such guarantor. No Litigation. There are no pending or
threatened suits, claims or demands against Borrower or any guarantor that have
not been disclosed to Bank by Borrower in writing. ERISA. Each employee pension
benefit plan, as defined in ERISA, maintained by Borrower meets, as of the date
hereof, the minimum funding standards of ERISA and all applicable regulations
thereto and requirements thereof, and of the Internal Revenue Code of 1954, as
amended. No "Prohibited Transaction" or "Reportable Event" (as both terms are
defined by ERISA) has occurred with respect to any such plan.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing: Business Continuity. Borrower shall conduct its business in
substantially the same manner and locations as such business is now and has
previously been conducted. Maintain Properties. Borrower shall maintain,
preserve and keep its property in good repair, working order and condition,
making all needed replacements, additions and improvements thereto, to the
extent allowed by this Agreement. Access to Books & Records. Borrower shall
allow Bank, or its agents, during normal business hours, access to the books,
records and such other documents of Borrower as Bank shall reasonably require,
and allow Bank to make copies thereof at Bank's expense. Insurance. Borrower
shall maintain adequate insurance coverage with respect to its properties and
business against loss or damage of the kinds and in the amounts customarily
insured against by companies of established reputation engaged in the same or
similar businesses including, without limitation, commercial general liability
insurance, workmen's compensation insurance, and business interruption
insurance, and upon all Collateral (as defined in the Loan Documents) securing
the Obligations, such insurance as specified in the Loan Documents; all acquired
in such amounts and from such companies as Bank may reasonably require. Notice
of Default and Other Notices. (a) Notice of Default. Borrower shall furnish to
Bank immediately upon becoming aware of the existence of any condition or event
which constitutes a Default (as defined in the Loan Documents) or any event
which, upon the giving of notice or lapse of time or both, may become a Default,
written notice specifying the nature and period of existence thereof and the
action which Borrower is taking or proposes to take with respect thereto. (b)
Other Notices. Borrower shall promptly notify Bank in writing of (i) any
material adverse change in its financial condition or its business; (ii) any
default under any material agreement, contract or other instrument to which it
is a party or by which any of its properties are bound, or any acceleration of
the maturity of any indebtedness owed by Borrower; (iii) any material adverse
claim against or affecting Borrower; or any part of its properties; (iv) the
commencement of, and any material determination in, any litigation with any
third party or any proceeding before any governmental agency or unit affecting
Borrower; and (v) at least thirty (30) days prior thereto, any
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change in Borrower's name or address as shown above, and/or any change in
Borrower's structure. Notices. Promptly notify Bank in writing of (i) any
material adverse change in its financial condition or its business; (ii) any
default under any material agreement, contract or other instrument to which it
is a party or by which any of its properties are bound, or any acceleration of
the maturity of any indebtedness owing by Borrower; (iii) any material adverse
claim against or affecting Borrower or any of its properties; (iv) the
commencement of, and any material determination in, any litigation with any
third party or any proceeding before any governmental agency or unit affecting
Borrower; and (v) at least 30 days prior thereto, any changes in Borrower's name
or address as shown above, and/or any change in Borrower's structure. Compliance
with Other Agreements. Borrower shall comply with all terms and conditions
contained in this Agreement, and any other Loan Documents, and swap agreements,
if applicable, as defined in the Note. Payments of Debts. Borrower shall pay and
discharge when due, and before subject to penalty or further charge, and
otherwise satisfy before maturity or delinquency, all obligations, debts, taxes,
and liabilities of whatever nature or amount, except those which Borrower in
good faith disputes. Reports and Proxies. Borrower shall deliver to Bank,
promptly, a copy of all financial statements, reports, notices, and proxy
statements, sent by Borrower to stockholders, and all regular or periodic
reports required to be filed by Borrower with any governmental agency or
authority. Other Financial Information. Borrower shall deliver promptly such
other information regarding the operation, business affairs, and financial
condition of Borrower which Bank may reasonably request. Non-Default Certificate
From Borrower. Borrower shall deliver to Bank, with the financial statements
required above, a certificate signed by Borrower or by a principal financial
officer of Borrower warranting that no "Default" as specified in the Loan
Documents, nor any event which, upon the giving of notice or lapse of time or
both, would constitute such a Default, has occurred. Estoppel Certificate.
Borrower, within fifteen (15) days after request by Bank, will furnish a written
statement duly acknowledged of the amount due under the Loan and whether offsets
or defenses exist against the Obligations. Deposit Relationship. Borrower will
maintain its primary depository relationship with Bank.
NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing: Nonpayment; Nonperformance. Borrower shall not fail to pay
or perform the Obligations or Default (as defined in the Loan Documents) under
any of the Loan Documents. Cross Default. Borrower shall not default in payment
or performance of any obligation under any other loans, contracts or agreements
of Borrower, any Subsidiary or Affiliate of Borrower ("Affiliate" shall have the
meaning as defined in 11 U.S.C. ss. 101, except that the term "debtor" therein
shall be substituted by the term "Borrower" herein; "Subsidiary" shall mean any
corporation of which more than 50% of the issued and outstanding voting stock is
owned directly or indirectly by Borrower), any general partner of or the
holder(s) of the majority ownership interests of Borrower with Bank or its
affiliates. Material Capital Structure or Business Alteration. Borrower shall
not materially alter the type or kind of Borrower's business or that of its
Subsidiaries or Affiliates, if any; or suffer or permit the acquisition of
substantially all of Borrower's business or assets, or a material portion (10%
or more) of such business or assets if such a sale is outside Borrower's
ordinary course of business, or more than 50% of its outstanding stock or voting
power in a single transaction or a series of transactions; or acquire
substantially all of the business or assets or more than 50% of the outstanding
stock or voting power of any other entity; or enter into any merger or
consolidation without prior written consent of Bank. Government Intervention.
Borrower shall not permit the assertion or making of any seizure, vesting or
intervention by or under authority of any government by which the management of
Borrower or any guarantor is displaced of its authority in the conduct of its
respective business or such business is curtailed or materially impaired.
Prepayment of Other Debt. Borrower shall not retire any long-term debt entered
into prior to the date of this Agreement at a date in advance of its legal
obligation to do so. Retire or Repurchase Capital Stock. Borrower shall not
retire or otherwise acquire any of its capital stock. Default on Other Contracts
or Obligations. Borrower shall not default on any material contract with or
obligations when due to a third party or default in the performance of any
obligation to a third party incurred for money borrowed. Judgment Entered.
Borrower shall not permit the entry of any monetary judgment or the assessment
against, the filing of any tax lien against, or the issuance of any writ of
garnishment or attachment against any property of or debts due Borrower.
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Change of Control. Borrower shall not make a material change of ownership that
effectively changes control of Borrower. Guarantees. Borrower shall not
guarantee or otherwise become responsible for obligations of any other person or
entity.
FINANCIAL REPORTS. Borrower agrees to the following provision(s) from the date
of this Agreement and until final payment in full of the Obligations, unless
Bank shall otherwise consent in writing: Annual Financial Statements. Borrower
shall deliver to Bank, within 120 days after the close of each fiscal year,
audited financial statements reflecting its operations during such fiscal year,
including, without limitation, a balance sheet, profit and loss statement and
statement of cash flows, with supporting schedules; all on a consolidated basis
and in reasonable detail, prepared in conformity with generally accepted
accounting principles, applied on a basis consistent with that of the preceding
year. All such statements shall be examined by an independent certified public
accountant acceptable to Bank. The opinion of such independent certified public
accountant shall not be acceptable to Bank if qualified due to any limitations
in scope imposed by Borrower. Any other qualification of the opinion by the
accountant shall render the acceptability of the financial statements subject to
Bank's approval.
FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date
of this Agreement and until final payment in full of the Obligations, unless
Bank shall otherwise consent in writing: Tangible Net Worth. Borrower shall, at
all times, maintain a Tangible Net Worth of at least One Thousand Dollars and No
Cents ($1,000.00). "Tangible Net Worth" shall mean total assets minus total
liabilities. For purposes of this computation, the aggregate amount of any
intangible assets of Borrower including without limitation, goodwill,
franchises, licenses, patents, trademarks, trade names, copyrights, service
marks, and brand names, shall be subtracted from total assets, and total
liabilities shall include subordinated debt.
CONDITIONS PRECEDENT. The obligations of Bank to make the Loan and any advances
pursuant to this Agreement are subject to the following conditions precedent:
Additional Documents. Receipt by Bank of such additional supporting documents as
Bank or its counsel may reasonably request.
IN WITNESS WHEREOF, Borrower, on the day and year first written above, has
caused this Agreement to be executed under seal.
RSI HOLDINGS, INC.
Corporate By: /s/ Xxxx X. Xxxxxx
Seal Xxxx X. Xxxxxx
President & CEO
TAXPAYER IDENTIFICATION NUMBER(S): RSI HOLDINGS, INC. 00-0000000
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Senior Vice President
