UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended July 31, 1995
Commission file number 0-4769
DOLLAR GENERAL CORPORATION
(Exact name of registrant as specified in its charter)
KENTUCKY 61-0502302
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
104 Woodmont Blvd.
Suite 500
Nashville, Tennessee 37205
(Address of principal executive offices, zip code)
Registrant's telephone number, including area code:(615) 783-2000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No____.
The number of shares of common shares outstanding at September 8, 1995 was
57,514,191.
<PAGE>2<PAGE>
Dollar General Corporation
Form 10-Q
For the Quarter Ended July 31, 1995
Index
Part I. Financial Information Page No.
Item 1. Financial Statements (unaudited):
Consolidated Statements of
Income for the three months and six
months ended July 31, 1995 and 1994 3
Consolidated Balance Sheets as of
July 31, 1995, January 31, 1995 and
July 31, 1994 4
Consolidated Statements of Cash Flows for
the six months ended July 31, 1995
and 1994 5
Notes to Consolidated Financial
Statements 6-7
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations 8-10
Part II. Other Information
Item 4. Submission of Matters to a Vote of
Security Holders 11
Item 6. Exhibits and Reports on Form 8-K 11
Signatures 12
<PAGE>3
PART I - FINANCIAL INFORMATION
ITEM 1. Financial Statements
DOLLAR GENERAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
For the three months and six months ended July 31, 1995 and 1994
(in thousands except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three Months Six Months
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Net sales $408,204 $317,323 $751,596 $604,409
Cost of goods sold 294,259 229,615 541,370 436,721
Gross profit 113,945 87,708 10,226 167,688
Selling, general and
administrative expense 83,415 64,636 159,740 128,940
Operating profit 30,530 23,072 50,486 38,748
Interest expense 1,765 647 2,898 1,039
Income before taxes
on income 28,765 22,425 47,588 37,709
Provision for taxes on income 11,074 8,465 18,321 14,235
Net income 17,691 13,960 29,267 23,474
Net income per common share $ .25 $ .20 $ .42 $ .34
Weighted average number of
common shares outstanding 70,312 68,839 70,109 68,643
Cash dividends per common
share as declared $ .05 $ .05 $ .10 $ .10
Adjusted to give retroactive
effect to the five-for-four
stock split distributed on
March 6, 1995 $ .05 $ .04 $ .10 $ .08
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>4
DOLLAR GENERAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
As of July 31, 1995, January 31, 1995 and July 31, 1994
(in thousands)
<TABLE>
<CAPTION>
ASSETS July 31, January 31, July 31,
1995 1995 1994
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 13,971 $ 33,045 $ 26,764
Merchandise inventories 462,642 356,111 332,551
Deferred income taxes 10,925 11,785 10,808
Other current assets 14,101 9,212 10,757
Income taxes 0 0 2,215
Total current assets 501,639 410,153 383,095
Property & equipment, at cost 212,379 187,360 147,779
Less: Accumulated depreciation 72,631 62,108 54,580
139,748 125,252 93,199
Other Assets 5,569 5,463 4,719
$646,956 $540,868 $481,013
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term
debt $ 1,483 $ 1,441 $ 1,303
Short-term borrowings 124,501 29,600 62,000
Accounts payable 93,557 111,675 91,515
Accrued expenses 52,859 61,037 49,418
Income taxes 3,709 5,210 0
Total current liabilities 276,109 208,963 204,236
Long-term debt 3,598 4,767 4,669
Deferred income taxes 3,382 3,382 2,563
Shareholders' equity:
Preferred stock 858 858 0
Common stock 33,971 33,971 27,248
Additional paid-in capital 299,304 283,323 75,372
Retained earnings 229,868 207,436 169,308
564,001 525,588 271,928
Less treasury stock 200,134 201,832 2,383
363,867 323,756 269,545
$646,956 $540,868 $481,013
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>5
DOLLAR GENERAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
for the six months ended July 31, 1995 and 1994
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
July 31, July 31,
1995 1994
<S> <C> <C>
Cash flows from operating activities:
Net income $ 29,267 $ 23,474
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization 11,395 7,805
Deferred income taxes 860 ( 1,144)
Change in operating assets and liabilities:
Merchandise inventories (106,531) (72,509)
Accounts payable ( 18,118) 10,475
Accrued expenses ( 8,178) 1,512
Income taxes ( 1,501) ( 652)
Other current assets ( 4,889) ( 2,360)
Other 904 337
Net cash used by operating activities ( 96,791) (33,060)
Cash flows used in investing activities:
Purchase of property & equipment ( 26,902) (23,852)
Cash flows provided by financing activities:
Issuance of short-term borrowings 124,501 52,000
Repayments of short-term borrowings ( 29,600) ( 8,000)
Repayments of long-term debt ( 1,126) ( 1,041)
Payments of cash dividends ( 6,835) ( 5,333)
Proceeds from exercise of stock options 11,338 5,899
Tax benefits from exercise of stock options 6,341 4,786
Net cash provided by financing
activities 104,619 48,313
Net decrease in cash and equivalents ( 19,074) ( 8,601)
Cash and cash equivalents at
beginning of year 33,045 35,365
Cash and cash equivalents at end of period $ 13,971 $ 26,764
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The accompanying financial statements are presented in accordance with the
requirements of Form 10-Q and consequently do not include all of the disclosures
normally required by generally accepted accounting principles or those normally
made in the Company's Annual Report on Form 10-K. Accordingly, the reader of
the quarterly report on Form 10-Q should refer to the Company's annual report on
Form 10-K for the year ended January 31, 1995 for additional information.
The accompanying financial statements have been prepared in accordance with
the Company's customary accounting practices and have not been audited. All
subsidiaries are included. In management's opinion, all adjustments (which are
of a normal recurring nature) necessary for a fair presentation of the results
of operations for the three- month and six-month periods ended July 31, 1995 and
1994, respectively have been made.
Interim cost of goods sold is determined using estimates of inventory
shrinkage, inflation, and markdowns which are adjusted to reflect actual results
at year end. Because of the seasonal nature of the Company's business, the
results for interim periods are not necessarily indicative of the results to be
expected for the entire year.
2. Net Income Per Common Share
Net income per common share is based upon the actual weighted average number
of common shares outstanding during each period plus the assumed exercise of
dilutive stock options as follows:
<TABLE>
<CAPTION>
Three Months Six Months
Ended July 31 Ended July 31
Shares (000's)
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Actual weighted average number
of common shares outstanding
during the period 57,134 66,329 56,843 66,048
Common Stock Equivalents:
Dilutive effect of stock options
using the "Treasury Stock
Method" 2,455 2,510 2,543 2,595
1,715,742 shares Convertible
Preferred Stock Issued August 22,
1994 10,723 0 10,723 0
Weighted Average Shares 70,312 68,839 70,109 68,643
</TABLE>
<PAGE> 7
3. Changes in shareholder's equity for the six months ended July 31, 1995 and
1994 were as follows (in thousands except per share amounts):
<TABLE>
<CAPTION>
Additional
Preferred Common Paid-In Retained Treasury
Stock Stock Capital Earnings Stock
<S> <C> <C> <C> <C> <C>
Balances, January 31, 1994 $ 0 $ 27,248 $ 65,857 $151,165 $ 3,553
Net income 23,474
Cash dividend, $.10 per ( 5,331)
common share, as
declared
Reissuance of treasury
stock under employee
stock incentive plans 4,729 ( 1,170)
Tax benefit from exercise
of options ______ ________ 4,786 ________ _______
Balances, July 31, 1994 $ 0 $ 27,248 $ 75,372 $169,308 $ 2,383
Balances, January 31, 1995 $ 858 $ 33,971 $283,323 $207,436 $201,832
Net income 29,267
Cash dividend, $.10 per
common share, as
declared ( 5,871)
Cash dividend, $.56 per
preferred share ( 964)
Reissuance of treasury
stock under employee
stock incentive plans 9,640 ( 1,698)
Tax benefit from exercise
Of options ______ _______ 6,341 ________ _______
Balances, July 31, 1995 $ 858 $ 33,971 $299,304 $229,868 $200,134
</TABLE>
<PAGE>8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The nature of the Company's business is seasonal. Historically, sales in
the fourth quarter have been significantly higher than sales achieved in each of
the first three quarters of the fiscal year which ends January 31st. Thus,
expenses, and to a greater extent operating income, vary by quarter. Results of
a period shorter than a full year may not be indicative of results expected for
the entire year. Due to the seasonal nature of the business, current year
periods are most accurately evaluated by comparison to the same periods in prior
years.
Six months ended July 31, 1995 and 1994.
NET SALES. Net sales for the first six months of fiscal 1996 increased
$147.2 million, or 24.35% to $751.6 million from $604.4 million for the
comparable period of fiscal 1995. The increase resulted primarily from 367 net
additional stores being in operation as of July 31, 1995 as compared with the
same prior-year period and an increase of 7.8% in same-store sales. In the
first six months of fiscal 1996, the Company opened 218 stores, closed 17 stores
and ended the period with a total of 2,260 stores. However, the same-store
sales increase for the first six months of fiscal 1996 of 7.8% is down from a
13.4% increase in the comparable six-month period of fiscal 1995.
The Company regards same stores as those opened prior to the beginning of
the previous fiscal year which have remained open throughout the previous fiscal
year and the period reported. Management believes that the same-store sales
increase is a continued reflection of the success of its everyday low price
strategy and merchandise selection. The reduction in the percentage increase in
same-store sales in the first six months of fiscal 1996 as compared to the
comparable period in fiscal 1995 is primarily the result of constraints in
shipping merchandise to the stores related to the start up of the Ardmore
distribution center. The Company's sales mix further shifted in the first six
months of fiscal 1996 in favor of hardlines, which accounted for 69% of the
sales, compared to softlines' 31% of sales versus 65% and 35%, respectively,
in the first six months of fiscal 1995.
GROSS PROFIT. Gross profit for the first six months of fiscal 1996 was
$210.2 million, or 27.97% of net sales, compared to $167.7 million, or 27.74% of
net sales, for the comparable period in the prior fiscal year. The increase
resulted from higher beginning inventory margins and lower markdowns which more
than offset increased distribution costs related to the start-up of the Ardmore,
Oklahoma distribution center. Shrinkage allowances and LIFO charges were
essentially unchanged from the same period last year. Cost of goods sold is
determined in the first, second and third quarters utilizing estimates of
inventory markdowns, shrinkage and inflation. Adjustment of these estimates
based upon actual results are included in cost of goods sold in the fourth
quarter.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE. Operating expenses for the
period equaled $159.7 million, or 21.25% of sales, compared with $128.9 million,
or 21.33% of sales, in the same period last year. Operating expenses as a
percentage of sales decreased principally as a result of lower self-insurance
reserves and employee benefit and bonus accruals, which more than offset higher
advertising, rent and depreciation costs.
INTEREST EXPENSE. Interest expense increased 178.9% to $2.9 million for
the first six months of fiscal 1996 from $1.0 million for the comparable prior
year period. The increase resulted primarily from greater average short-term
borrowings as well as higher interest rates. Average short-term borrowings were
$84.9 million and $38.3 million for the respective six-month periods of fiscal
1996 and 1995.
<PAGE>9
Three months ended July 31, 1995 and 1994.
NET SALES. Net sales in the second quarter of fiscal 1996 increased $90.9
million or 28.6%, to $408.2 million from $317.3 million for the same period in
fiscal 1995. The increase resulted from a same-store sales increase of 10.6%
and the operation of more than 367 additional stores.
GROSS PROFIT. Gross profit as a percentage of sales was 27.91% in the
second quarter of fiscal 1996 as compared to 27.64% for the comparable period in
fiscal 1995. This increase was the result of the same factors affecting gross
profit for the six-month period.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE. Selling, general and
administrative expense increased $18.8 million or 29.05% in the second quarter
of fiscal 1996 as compared to fiscal 1995. As a percentage of sales, selling,
general and administrative expense increased to 20.43% for the second quarter of
fiscal 1996 from 20.37% for the same period in the previous year. Operating
expenses as a percentage of sales increased principally as a result of higher
advertising, rent, and depreciation costs which were partially offset by lower
self-insurance reserves and employee benefit and bonus accruals.
INTEREST EXPENSE. Interest expense for the second quarter of fiscal 1996
increased 172.8%, to $1.8 million from $0.6 million, from the comparable period
in fiscal 1995 due to greater average borrowings and higher interest rates.
Average short-term borrowings were $102.9 million and $47.4 million for the
respective three-month periods of fiscal 1996 and 1995.
LIQUIDITY AND CAPITAL RESOURCES
Cash flows from operating activities. Cash used in operating activities
totaled $96.8 million during the first six months of fiscal 1996 compared to
$33.1 million in the same period last year. This increased use of cash is
primarily the result of a $106.5 million increase in inventories since fiscal
year end 1995, $34.0 million more than in the same period last year, and an
$18.1 million reduction in trade payables, which is a $28.5 million adjustment
from the same period last year. The increase in merchandise inventories is the
result of operating 367 more stores, stocking the new Ardmore distribution
center, increased imported merchandise in transit, and inventory necessary to
support the back to school season.
Cash flows from investing activities. Cash used for capital expenditures
during the first six months of fiscal 1996 increased $3.0 million to $26.9
million as compared to $23.9 million in the comparable period in 1995. The
current year expenditures result principally from opening 218 new stores this
year versus 115 last year, remodeling and relocating 235 stores this year versus
105 last year, and purchasing additional distribution trailers versus
constructing the Ardmore distribution center last year.
Cash flows from financing activities. The Company's short-term borrowings
during the first six months of fiscal 1996 increased $94.9 million to $124.5
million compared with an increase of $44.0 million to $62.0 million during the
same period of the prior fiscal year. The increase in short-term borrowings is
required to fund the cash used in operating activities and for the capital
expenditures discussed above.
Because the Company emphasizes seasonal events, such as Christmas and
back-to-school, its working capital requirements vary significantly during the
year. Bank credit facilities equaled $270.0 million at July 31, 1995 ($170.0
million revolving credit/term loan facility plus $100.0 million seasonal lines
of credit). The Company successfully renegotiated an increase in its revolving
credit/term loan facility from $65.0 million to $170.0 million during June 1995.
The Company had no seasonal line of credit borrowings as of July 31, 1995, or
1994. Seasonal working capital and capital expenditure requirements will
<PAGE>10
continue to be met through cash flow provided by operating activities
supplemented by the revolving credit/term loan facility and seasonal credit
lines.
The Company's liquidity position is set forth in the following table
(amounts in thousands):
<TABLE>
<CAPTION>
July 31, January 31, July 31,
1995 1995 1994
<S> <C> <C> <C>
Current ratio 1.8x 2.0x 1.9x
Total debt/equity 35.6% 11.1% 25.2%
Long-term debt/equity 1.0% 1.5% 1.7%
Working capital (000) $225,530 $201,190 $178,859
Average daily use of debt:
(fiscal year to date)
Short-term (000) 84,898 51,528 38,315
Long-term (000) 4,932 6,035 6,250
Total (000) 89,830 57,563 44,565
Minimum outstanding
short-term debt
(fiscal year-to-date) $124,501 $116,712 $ 62,000
</TABLE>
<PAGE>11
PART II - OTHER INFORMATION
Item 1. Not applicable.
Item 2. Not applicable.
Item 3. Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
At the Annual Meeting of Stockholders of the Corporation held June 5, 1995,
the Stockholders voted upon four proposals. The results of the Stockholders'
vote on each of the proposals are as follows:
Proposal No. 1. Election of Directors. The following nominees were elected to
serve as Directors of the Corporation until the next Annual Stockholders'
Meeting:
<TABLE>
<CAPTION>
Nominee Votes For Votes Withheld
<S> <C> <C>
James L. Clayton 47,169,010 98,814
James D. Cockman 47,167,667 100,157
Reginald D. Dickson 47,168,838 98,986
John B. Holland 47,096,317 126,124
Wallace N. Rasmussen 47,160,722 107,102
Cal Turner 47,163,398 104,426
Cal Turner, Jr. 47,094,653 172,390
David M. Wilds 47,174,015 97,809
William S. Wire, II 47,165,863 101,961
</TABLE>
Proposal No. 2. Ratification of the 1995 Employee Stock Incentive Plan.
Votes For Votes Against/Abstain
33,781,560 15,905,093
Proposal No. 3. Ratification of the 1995 Outside Directors' Stock Option Plan.
Votes For Votes Against/Abstain
40,875,126 8,811,517
Proposal No. 4. Ratification of Coopers & Lybrand L.L.P. as the Corporation's
Independent Public Accounts.
Votes For Votes Against Abstentions
49,470,903 69,278 146,462
Item 5. Not applicable.
Item 6. Exhibits and reports on Form 8-K
(a) Loan Agreement dated June 14, 1995 by and among Dollar General
Corporation, Dolgencorp, Inc. and NationsBank of North
Carolina, N.A.
(b) No reports on Form 8-K were filed during the quarter
ended July 31, 1995.
<PAGE>12
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DOLLAR GENERAL CORPORATION
(Registrant)
Date: September 12, 1995 By:___________________________________
Bob Carpenter, Chief Administrative
Officer, Vice President
and Corporate Secretary
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The accompanying notes are an integral part of this statement.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-31-1995
<PERIOD-END> JUL-31-1995
<CASH> 13,971
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 462,642
<CURRENT-ASSETS> 501,639
<PP&E> 212,379
<DEPRECIATION> 72,631
<TOTAL-ASSETS> 646,956
<CURRENT-LIABILITIES> 276,109
<BONDS> 0
<COMMON> 33,971
0
858
<OTHER-SE> 329,038
<TOTAL-LIABILITY-AND-EQUITY> 646,956
<SALES> 751,596
<TOTAL-REVENUES> 751,596
<CGS> 541,370
<TOTAL-COSTS> 159,740
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,898
<INCOME-PRETAX> 47,588
<INCOME-TAX> 18,321
<INCOME-CONTINUING> 29,267
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 29,267
<EPS-PRIMARY> .42
<EPS-DILUTED> .42
</TABLE>
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT dated as of June
14, 1995 (the "Loan Agreement"), is by and among DOLLAR GENERAL
CORPORATION, a Kentucky corporation ("Dollar"), DOLGENCORP, INC.,
a Kentucky corporation ("Dolgencorp")(Dollar and Dolgencorp may
be referred to herein individually as a "Borrower" or
collectively as the "Borrowers"), the various banks and lending
institutions on the signature pages hereto (each a "Bank" and
collectively, the "Banks"), and NATIONSBANK, N.A. (CAROLINAS), a
national banking association, as agent for the Banks (in such
capacity, the "Agent") and amends, supersedes and replaces for
all purposes that certain Loan Agreement, dated August 19, 1992,
as amended, by and among Borrowers, Banks and the Agent.
WHEREAS, the Borrowers have requested that the Banks provide
a $170,000,000.00 credit facility for the purposes hereinafter
set forth;
WHEREAS, the Banks have agreed to provide the requested
credit facility, and the Agent has accepted its duties hereunder,
on the terms and conditions hereinafter set forth;
NOW THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise
requires. Defined terms herein shall include in the singular
number the plural and in the plural the singular:
"Acceptance Documents" means such documents and
agreements as the Accepting Bank reasonably may require
in connection with the Bankers' Acceptance financing
contemplated therein.
"Accepting Bank" means, with respect to any
Bankers' Acceptance, Nationsbank of North Carolina,
N.A.
"Adjusted CD Loan" means a Loan which bears
interest based on the Adjusted CD Rate.
"Adjusted CD Rate" means for the Interest Period
for each Adjusted CD Loan comprising part of the same
borrowing (including conversions, extensions and
renewals), a per annum interest rate equal to the sum
of:
<PAGE>2
(a) the per annum rate obtained by
dividing (I) the rate of interest determined
by the Agent to be the average (rounded
upward to the nearest whole multiple of 1/100
of 1% per annum, if such average is not such
a multiple) of the consensus bid rate
determined by the Agent for the bid rates per
annum, at 10:00 a.m. (Charlotte, North
Carolina time) (or as soon thereafter as is
practicable) on the first day of such
Interest Period, of New York certificate of
deposit dealers of recognized standing
selected by the Agent for the purchase at
face value of the Agent's certificates of
deposit in an amount substantially equal to
the Adjusted CD Loan comprising part of such
borrowing (including extensions and renewals)
and with a maturity equal to such Interest
Period, by (ii) a percentage equal to 100%
minus the Adjusted CD Reserve Percentage (as
defined below) for such Interest Period, plus
(b) the Assessment Rate (as defined below), if
any, for such Interest Period.
As used herein "Adjusted CD Rate Reserve Percentage" for the
Interest Period for each Adjusted CD Loan comprising part of
the same borrowing (including conversions, extensions and
renewals) means the reserve percentage applicable on the
first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with deposits exceeding one billion dollars
with respect to liabilities consisting of or including
(among other liabilities) U.S. dollar nonpersonal time
deposits in the United States with a maturity equal to such
Interest Period. The "Assessment Rate" for the Interest
Period for each Adjusted CD Loan comprising part of the same
borrowing (including conversions, extensions and renewals)
means the annual assessment rate estimated by the Agent on
the first day of such Interest Period for determining the
then current annual assessment payable by the Agent to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of the Agent in the United
States.
"Adjusted Eurodollar Rate" means for the Interest
Period for each Eurodollar Loan comprising part of the
same borrowing (including conversions, extensions and
renewals), a per annum interest rate equal to the per
annum rate obtained by dividing (a) the rate of
interest determined by the Agent to be the average
<PAGE>3
(rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the per annum
rates at which deposits in U.S. dollars are offered to the Agent
in the interbank eurodollar market at 11:00 a.m. (London time)
(or as soon thereafter as is practicable), in each case two
Business Days before the first day of such Interest Period in an
amount substantially equal to such Eurodollar Loan comprising
part of such borrowing (including conversions, extensions and
renewals) and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Adjusted Eurodollar Reserve
Percentage, if any, for such Interest Period. As used herein,
"Adjusted Eurodollar Rate Reserve Percentage" for the Interest
Period for each Eurodollar Loan comprising part of the same
borrowing (including conversions, extensions and renewals), means
the percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including eurocurrency
liabilities, as such term is defined in Regulation D (or with
respect to any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar
Loans is determined) having a term equal to the Interest Period
for which such Adjusted Eurodollar Reserve Percentage is
determined.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling
(including but not limited to all directors and
officers of such Person), controlled by or under direct
or indirect common control with such Person. A Person
shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power (a) to
vote 10% or more of the securities having ordinary
voting power for the election of directors of such
corporation or (b) to direct or cause direction of the
management and policies of such corporation, whether
through the ownership of voting securities, by contract
or otherwise.
"BA Commission" shall have the meaning given to
such term in Section 2.06(c) hereof.
"Bankers' Acceptance" or "Bankers' Acceptances"
means a draft drawn by the Borrowers on, and accepted
and discounted by, the Accepting Bank pursuant to
<PAGE>4
Section 2.07 hereof in the standard form for bankers' acceptances
of the Accepting Bank.
"Bankers' Acceptances Outstanding" means, as of
the date of determination, the sum of (a) the maximum
aggregate amount which is, or at any time thereafter
may become, payable by the Accepting Bank under all
Bankers' Acceptances, plus (b) the aggregate amount of
all payments made by the Accepting Bank under Bankers'
Acceptances and not theretofore reimbursed by the
Borrowers.
"Bid Rate Loan" means a Loan which bears interest
based on the applicable Offered Rate as accepted by the
Borrowers pursuant to Section 2.07.
"Bid Rate Note" or "Bid Rate Notes" means the
promissory note or notes of the Borrowers evidencing
each Bid Rate Loan in accordance with Section 2.07(g),
collectively or individually, as appropriate, as such
promissory notes may be amended, modified, supplemented
or replaced from time to time.
"Bid Rate Offer" means one or more offers by a
Bank to make one or more Bid Rate Loans submitted to
the Agent in accordance with Section 2.07.
"Business Day" means any day other than a
Saturday, a Sunday, a legal holiday in Charlotte, North
Carolina or a day on which banking institutions are
authorized by law or other governmental action to close
except that in the case of Eurodollar loans, such day
is also a day on which dealings between banks are
carried on in U.S. dollar deposits in the interbank
Eurodollar market.
"Capital" means, as of any date of determination, the
sum of Funded Debt plus shareholders equity as determined in
accordance with Generally Accepted Accounting Principles.
"Capital Guideline" means any law, rule,
regulation, policy, guideline or directive (whether or
not having the force of law and whether or not the
failure to comply therewith would be unlawful, and
including, without limitation, any law, rule,
regulation, governmental policy, guideline or directive
contemplated by the report dated July, 1988 entitled
"International Convergence of Capital Measurement and
Capital Standards" issued by the Basle Committee on
Banking Regulations and Supervisory Practices): (i)
regarding capital adequacy, capital ratios, capital
requirements, the calculation of a bank's capital or
similar matters, or (ii) affecting the amount of
capital required to be obtained or maintained by the
Accepting Bank or the Banks or the manner in which the
<PAGE> 5
Accepting Bank or the Banks allocate capital to any of their
contingent liabilities (including letters of credit), advances,
commitments, assets or liabilities.
"Cash Equivalents" means (a) securities issued or
directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof)
having maturities of not more than six months from the
date of acquisition, (b) U.S. dollar denominated (or
foreign currency fully hedged) time deposits, certifi-
cates of deposit, Eurodollar time deposits, Eurodollar
certificates of deposit of (x) any domestic commercial
bank of recognized standing having capital and surplus
in excess of $400,000,000 or (y) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from
Moody's is at least P-1 or the equivalent thereof or any bank whose
Moody's deposit obligations rating is at least P-1 or who has a
similar rating with S&P (any such bank being an
"Approved Bank"), in each case with maturities of not
more than six months from the date of acquisition, (c)
commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition and (d)
repurchase agreements with a bank or trust company
(including any Bank) or recognized securities dealer
having capital and surplus in excess of $400,000,000
for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrowers
shall have a perfected first priority security interest
(subject to no other liens or encumbrances) and having,
on the date of purchase thereof, a fair market value of
at least 100% of the amount of the repurchase obliga-
tions.
"Closing Date" or "Effective Date" means the date
on which the conditions set forth in Article IV to the
making of the initial Loans hereunder shall have been
fulfilled (or waived) and on which the initial Loans
shall have been made.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means the commitment by each Bank to
make Loans to the Borrowers hereunder and to
participate in Bankers' Acceptances issued hereunder in
a maximum aggregate principal amount equal to each
Bank's Committed Amount.
<PAGE>6
"Committed Amount" means, for each Bank, the
amount identified as its Committed Amount opposite such
Bank's name on the signature pages hereto as such
amount may be reduced pro rata based on reductions in
the Maximum Commitment made in accordance with the
terms hereof.
"Commitment Percentage" means, for any Bank, the
percentage set forth opposite the name of such Bank on
the signature pages hereto.
"Consistent Basis" or "consistent basis" means,
with regard to the application of accounting
principles, accounting principles consistent in all
material respects with the accounting principles used
and applied in preparation of the financial statements
previously delivered to the Banks and referred to in
Section 5.06 hereof.
"Controlled Group" means (a) the controlled group
of corporations as defined in Section 414(b) of the
Code and the applicable regulations thereunder, or (b)
the group of trades or businesses under common control
as defined in Section 414(c) of the Code and the
applicable regulations thereunder, of which either of
the Borrowers is a part or may become a part.
"Default" means any event, act or condition which
with notice or lapse of time, or both, would constitute
an Event of Default.
"EBIT" means the consolidated net income of the
Borrowers and their Subsidiaries, before Interest
Expense and taxes, as computed in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, regulations, judgments, orders,
decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions
or policies including, without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act, the Superfund Amendments and
Reauthorization Act, the Resource Conservation and
Recovery Act, the Toxic Substances Control Act, the
Clean Air Act and the Clean Water Act relating to the
environment or to emissions, discharges or releases of
pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment (including,
without limitation, ambient air, surface water, ground
water or land) or otherwise relating to the
manufacture, processing, distribution, use, treatment,
<PAGE>7
storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
the regulations promulgated and the rulings issued
thereunder.
"ERISA Affiliate" means each person (as defined in
Section 3(9) of ERISA) which together with either of
the Borrowers or any of their respective Affiliates
would be deemed to be a member of the same "controlled
group" within the meaning of Section 414(b), (c), (m)
and (o) of the Code.
"Eurodollar Loan" means a Loan which bears
interest based on the Adjusted Eurodollar Rate.
"Event of Default" has the meaning specified in
Article VIII.
"Fixed Charge Coverage Ratio" means, for the
period of computation, with respect to the Borrowers,
the ratio of (a) EBIT plus Operating Lease Expense to
(b) the sum of Operating Lease Expense plus Interest
Expense.
"Funded Debt" means all Indebtedness that has a right
of payment priority pari passu with the Obligations.
"Funded Debt/Capital Ratio" shall mean on a
consolidated basis, the ratio of (i) Funded Debt to (ii)
Capital.
"Generally Accepted Accounting Principles" or
"generally accepted accounting principles" means generally
accepted accounting principles in the United States.
"Government Acts" has the meaning specified in
Section 2.06(f).
"Guaranty Obligations" means any obligations
(other than endorsements in the ordinary course of
business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations of
any other Person in any manner, whether direct or
indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase
any such Indebtedness or other obligation or any
property constituting security therefor, (b) to advance
or provide funds or other support for the payment or
purchase of such indebtedness or obligation or to
<PAGE>8
maintain working capital, solvency or other balance sheet
condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or
similar agreement or arrangement), (c) to lease or purchase
property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness or obligation, or (d)
otherwise assure or hold harmless the owner of such Indebtedness
or obligation against loss in respect thereof. The amount of
Guaranty Obligations hereunder shall be deemed to be an amount
equal to the stated or determinable amount of the Indebtedness or
obligation respect of which such Guaranty Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated
amount in respect thereof (assuming such other Person is required
to perform thereunder) as determined in good faith.
"Indebtedness" means without duplication, (a) all
indebtedness for borrowed money, (b) the deferred pur-
chase price of assets or services which in accordance
with generally accepted accounting principles would be
shown to be a liability (or on the liability side of a
balance sheet), (c) all Guaranty Obligations, (d) the
maximum amount of all acceptance facilities established
for the account of such Person and, without
duplication, all drafts drawn thereunder (other than
letters of credit (x) supporting other Indebtedness of
either of the Borrowers or (y) offset by a like amount
of cash or government securities held in escrow to
secure such letter of credit and draws thereunder), (e)
all capitalized lease obligations, (f) all Indebtedness
of another Person secured by any lien or any property
of either of the Borrowers, whether or not such
indebtedness has been assumed, (g) all obligations
under take-or-pay or similar arrangements or under
Interest Rate Protection Agreements, currency
agreements, or commodities agreements, (h) indebtedness
created or arising under any conditional sale or title
retention agreement, and (i) withdrawal liability or
insufficiency under ERISA or under any qualified plan
or related trust; but specifically excluding from the
foregoing trade payables and accrued expenses arising
or incurred in the ordinary course of business.
"Intangible Assets" shall mean, as of the date of
any determination thereof, the total amount of all
assets of the Borrowers and their Subsidiaries
consisting of good will, patents, trade names, trade
marks, copyrights, franchises, experimental expense,
organization expense, unamortized debt discount and
expense, deferred assets other than prepaid insurance
and prepaid taxes, the excess of cost of shares
acquired over book value of related assets and such
other assets as are properly classified as "intangible
<PAGE>9
assets" in accordance with Generally Accepted Accounting
Principles.
"Interest Expense" means the aggregate amount of
interest accruing on Indebtedness and all amortization
of debt discount and expense on Indebtedness
(including, without limitation, any obligation to pay
rent in respect of leases required to be capitalized in
accordance with Generally Accepted Accounting
Principles) of the Borrowers and their Subsidiaries in
the twelve-month period ending on the date such
discount or expense is calculated.
"Interest Payment Date" means (a) as to Prime Rate
Loans, the last day of each calendar quarter and on the
Termination Date and (b) as to Eurodollar Loans,
Adjusted CD Loans and Bid Rate Loans, on the last day
of each Interest Period for such Loan and on the
Termination Date, and in addition where the applicable
Interest Period is more than 3 months, in the case of
Eurodollar Loans, or more than 90 days, in the case of
Adjusted CD Loans, then also on the date 3 months or 90
days, respectively, from the beginning of the Interest
Period, and each 3 months or 90 days, respectively,
thereafter.
If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be
the next succeeding Business Day, except that in the case of
Eurodollar Loans where the next succeeding Business Day falls in
the next succeeding calendar month, then on the next preceding
day.
"Interest Period" means (a) as to Adjusted CD
Loans, a period of 30, 60, 90 or 180 days' duration, as
the Borrowers may elect, (b) as to Eurodollar Loans, a
period of one, two, three or six month's duration, as
the Borrowers may elect, and (c) as to Bid Rate Loans,
such period or periods in duration as a Bank may offer
and the Borrowers may accept in accordance with the
provisions of Section 2.07, commencing in each case, on
the date of the borrowing (including conversions,
extensions and renewals); provided, however, (i) if any
Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to
the next succeeding Business Day (except that in the
case of Eurodollar Loans where the next succeeding
Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day), (ii)
no Interest Period shall extend beyond the Termination
Date, and (iii) in the case of Eurodollar Loans, where
an Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month
in which the Interest Period is to end, such Interest
<PAGE>10
Period shall end on the last day of such calendar month.
"Interest Rate Protection Agreement" shall mean any
interest rate swap agreement, or other financial agreement
or arrangement designed to protect against fluctuations in
interest rates (other than an agreement which does not
create counterparty risk or liability).
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or
other title retention agreement, any financing or
similar statement or notice filed under the Uniform
Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or
notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means a Revolving Loan and/or
Bid Rate Loan, collectively or individually, as
appropriate.
"Loan Documents" means this Amended and Restated
Loan Agreement and the Notes.
"Majority Banks" means, at a particular time, the
holders of at least 66 2/3% of the aggregate unpaid
principal amount of the Revolving Notes and the
Bankers' Acceptances Outstanding, or if no amounts are
outstanding under the Revolving Notes, there are no
Bankers' Acceptances Outstanding, Banks having an
aggregate Commitment Percentage of at least 66 2/3%.
"Material Adverse Effect" means a material adverse
effect on (a) the operations or financial condition of
the Borrowers and their Subsidiaries, (b) the ability
of the Borrowers to perform their obligations under
this Amended and Restated Loan Agreement, or (c) the
validity or enforceability of this Amended and Restated
Loan Agreement, any of the other Loan Documents, or the
rights and remedies of the Banks hereunder or
thereunder.
"Maximum Commitment" means $170,000,000 from the
Closing Date to and including the Termination Date.
"Moody's" means Moody's Investors Service, Inc.,
and any successor thereof.
"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
Controlled Group is then making or accruing an
<PAGE>11
obligation to make contributions or has within the preceding five
plan years made contributions, including for these purposes any
Person which ceased to be a member of the Controlled Group during
such five year period.
"Notes" means a collective reference to the
Revolving Notes and the Bid Rate Notes.
"Notice of Borrowing" shall have such meaning as
provided in Section 2.02(a).
"Notice of Conversion" shall have such meaning as
provided in Section 3.03.
"Operating Lease Expense" means the aggregate
amount of rent and other expenses accruing on all
operating leases of the Borrowers and their
Subsidiaries in the twelve-month period ending on the
date of calculation.
"Obligations" means a collective reference to (a)
all obligations of the Borrowers to the Banks in con-nection with the
Revolving Loans, (b) all obligations of the Borrowers to the Banks in
connection with the Bid Rate Loans and (c) the Bankers' Acceptances
Outstanding.
"Offered Rate" means the per annum rate of
interest expressed as a percentage to four decimal
places and set forth in a Bid Rate Offer for a
particular Bid Rate Loan amount and a particular
Interest Period.
"Other Taxes" shall have such meaning as provided
in Section 3.07.
"PBGC" means the Pension Benefit Guaranty
Corporation established under ERISA, and any successor
thereto.
"Permitted Investments" means (a) cash and Cash
Equivalents, (b) receivables owing to either of the
Borrowers from any of its customers and/or suppliers,
in each case if created, acquired or made in the
ordinary course of business and payable or
dischargeable in accordance with customary trade terms,
(c) loans and advances to employees for business-related travel expenses,
moving expenses and other similar expenses, in each case incurred in the
ordinary course of business) in an aggregate amount not to
exceed $1,500,000.00 at any time outstanding, (d)
investments (including debt obligations) received in
connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent
<PAGE>12
obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business, (e) equity securities
listed on the New York Stock Exchange ("NYSE"), provided that the
long-term credit rating of the corporation issuing such
securities shall be at least AA from S&P or AA2 from Moody's or
(f) investments in Subsidiaries so long as the aggregate amount
of assets in any one Subsidiary does not exceed at any time 5% of
the total assets of the Borrowers and their Subsidiaries
(provided, however, the foregoing limitation shall not apply to
Indiana Dollar General Partners or Dolgencorp. of Texas, Inc.
"Permitted Liens" means (a) Liens described on
Exhibit A attached hereto; (b) Liens for taxes not yet
due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves
determined in accordance with generally accepted
accounting principles have been established (and as to
which the property subject to such lien is not yet
subject to foreclosure, sale or loss on account
thereof); (c) Liens in respect of property imposed by
law arising in the ordinary course of business such as
materialmen's, mechanics', warehousemen's and other
like Liens provided that such Liens secure only amounts
not yet due and payable or are bonded off within 14
days after they have arisen; (d) pledges or deposits
made to secure payment of worker's compensation
insurance, unemployment insurance, pensions or social
security programs; (e) Liens arising from good faith
deposits in connection with or to secure performance of
tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations
incurred in the ordinary course of business (other than
obligations in respect of the payment of borrowed
money); (f) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing
the use of such property for its intended purposes or
interfering with the ordinary conduct of business of
either of the Borrowers and (g) purchase money Liens
securing purchase money indebtedness of up to
$25,000,000 in the aggregate at any time outstanding.
"Person" means any individual, partnership, joint
venture, firm, corporation, association, trust or other
enterprise (whether or not incorporated), or any
government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means any multiemployer or single-employer
plan as defined in Section 4001 of ERISA, which is
maintained, or at any time during the five calendar
<PAGE> 13
years preceding the date of this Amended and Restated Loan
Agreement was maintained, for employees of either of the
Borrowers, any Subsidiary or an ERISA Affiliate.
"Prime Rate" means, for any Interest Period or any
other period, the rate of interest announced publicly by
Nationsbank in Charlotte, North Carolina, from time to time,
as Nationsbank's prime rate.
"Prime Rate Loan" means a Loan which bears interest
based on the Prime Rate.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion
thereof establishing reserve requirements.
"Regulation G" means Regulation G of the Board of
Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion
thereof establishing margin requirements.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion
thereof establishing margin requirements.
"Regulation X" means Regulation X of the Board of
Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion of
establishing margin requirements.
"Request for Bid Rate Loan" means a request by the
Borrowers for a Bid Rate Offers submitted to the Agent
in accordance with Section 2.08.
"Revolving Loans" means revolving credit loans
made pursuant to Section 2.01.
"Revolving Note" or "Revolving Notes" means the
promissory notes of the Borrowers in favor of each Bank
evidencing the Loans and provided in accordance with
Section 2.05, collectively or individually, as
appropriate, as such promissory notes may be amended,
modified, supplemented or replaced from time to time.
"S&P" means Standard & Poors Corporation, and any
successor thereof.
"Subsidiary" means (a) any corporation more than
50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a
majority of the directors of such corporation
(irrespective of whether or not at the time, any class
<PAGE> 14
or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the
time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint venture
or other entity in which such person directly or indirectly
through Subsidiaries has more than 50% equity interest at any
time.
"Tangible Net Worth" means, at any time,
consolidated net shareholders' equity of the Borrowers
and their Subsidiaries, determined in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis, with no upward adjustments due to a
revaluation of assets, minus all Intangible Assets of
the Borrowers and their Subsidiaries and minus all
amounts due from employees, officers, directors,
shareholders and affiliates.
"Taxes" shall have such meaning as provided in
Section 3.07.
"Termination Date" means June 30, 1997 (subject to
the provisions of Section 2.11) or the earlier
termination of this Agreement in accordance with the
terms hereof.
"Total Liabilities" means all items which, in
accordance with Generally Accepted Accounting
Principles, would be classified as liabilities on a
consolidated balance sheet of the Borrowers and their
Subsidiaries.
1.02 Computation of Time Periods. For purposes of computa-
tion of periods of time hereunder, the word "from" means "from
and including" and the words "to" and "until" each mean "to but
excluding."
1.03 Accounting Terms. The financial statements to be
furnished by the Borrowers pursuant hereto shall be made and
prepared in accordance with Generally Accepted Accounting
Principles consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise
disclosed in writing by the Borrowers to the Agent); provided,
that, except as otherwise specifically provided herein, all
computations determining compliance with Sections 6.11, 6.12 and
6.15 shall utilize accounting principles and policies in
conformity with those used to prepare the historical financial
statements delivered to the Agent on or before the Closing Date.
<PAGE>15
ARTICLE II
LOANS AND BANKERS' ACCEPTANCES
2.01 Commitment. Subject to and upon the terms and
conditions and relying upon the representations and warranties
herein set forth, each Bank severally agrees, at any time and
from time to time from the Closing Date until the Termination
Date, to make revolving credit loans (each a "Revolving Loan"
and, collectively, "Revolving Loans") to the Borrowers for the
purposes hereinafter provided; provided, however, the Banks shall
not be obligated to make any Revolving Loan to the extent that
immediately after the making of any such Revolving Loan either
the sum of the outstanding principal balance of all Revolving
Loans, Bid Rate Loans and Bankers' Acceptances Outstanding would
exceed the then applicable Maximum Commitment; provided further,
no Bank shall be obligated to make any Revolving Loan to the
extent that immediately after the making of any such Revolving
Loan such Bank's pro rata share of outstanding Revolving Loans
and Bankers' Acceptances Outstandings shall exceed such Bank's
Committed Amount. Revolving Loans hereunder may consist of Prime
Rate Loans, Eurodollar Loans or Adjusted CD Loans (or a
combination thereof) as the Borrowers may request, and may be
repaid and reborrowed in accordance with the provisions hereof;
provided, however, no more than twelve (12) Loans (other than Bid
Rate Loans) may be outstanding hereunder at any time.
2.02 Advances.
(a) Notices. Whenever the Borrowers desire a
Revolving Loan advance hereunder, they shall give written
notice or telephonic notice (confirmed immediately
thereafter in writing) (a "Notice of Borrowing") to the
Agent not later than 12:00 noon (Charlotte, North Carolina
time) on the Business Day of the requested advance in the
case of Prime Rate Loans, on the second Business Day prior
to the requested advance in the case of Adjusted CD Loans
and on the third Business Day prior to the requested advance
in the case of Eurodollar Loans. Each such notice shall be
irrevocable and shall specify (i) that a Revolving Loan is
requested, (ii) the date of the requested advance (which
shall be a Business Day), (iii) the aggregate principal
amount of Revolving Loans requested, and (iv) whether the
Revolving Loan requested shall consist of Prime Rate Loans,
Eurodollar Loans, Adjusted CD Loans or a combination
thereof, and if Eurodollar Loans and/or Adjusted CD Loans
are requested, the Interest Periods with respect thereto.
If the Borrowers shall fail to specify in any Notice of
Borrowing (A) an applicable Interest Period in the case of a
Eurodollar Loan or an Adjusted CD Loan, then such notice
shall be deemed to be a request for an Interest Period of
one month or 30 days, respectively, or (B) the type of
Revolving Loan requested, then such notice shall be deemed
to be a request for a Prime Rate Loan hereunder. The Agent
<PAGE>16
shall as promptly as practicable give each Bank notice of each
requested Revolving Loan advance, of such Bank's pro rata share
thereof and of the other matters covered in the Notice of
Borrowing.
(b) Minimum Amounts. The aggregate minimum principal
amount of each Revolving Loan advance hereunder shall be not
less than $1,000,000 (and integral multiples of $1,000,000
in excess thereof), of each Eurodollar Loan hereunder shall
be not less than $1,000,000 (and integral multiples of
$1,000,000 in excess thereof), and of each Adjusted CD Loan
shall be not less than $1,000,000 (and integral multiples of
$1,000,000 in excess thereof.
(c) Advances. Each Bank will make its pro rata share
of each Revolving Loan advance available to the Agent by
3:00 p.m. (Charlotte, North Carolina time) on date specified
in the Notice of Borrowing by deposit in U.S. dollars of
immediately available funds at the offices of the Agent in
Charlotte, North Carolina as provided in signature pages, or
at such other address as the Agent may designate in writing.
All Revolving Loan advances shall be made by the Banks pro
rata on the basis of each Bank's share of the Commitment.
No Bank shall be responsible for the failure or delay by any
other Bank in its obligation to make Revolving Loan advances
hereunder; provided, however, that the failure of any Bank
to fulfill its commitments hereunder shall not relieve any
other Bank of its commitments hereunder. Unless the Agent
shall have been notified by any Bank prior to the date of
any such Revolving Loan advance that such Bank does not
intend to make available to the Agent its portion of the
Revolving Loan advance to be made on such date, the Agent
may assume that such Bank has made such amount available to
the Agent on the date of such Revolving Loan advance, and
the Agent, in reliance upon such assumption, may (in its
sole discretion without any obligation to do so) make
available to the Borrowers a corresponding amount. If such
corresponding amount is not in fact made available to the
Borrowers, the Agent shall be entitled to recover such
corresponding amount from such Bank. If such Bank does not
pay such corresponding amount forthwith upon the Agent's
demand therefor, the Agent will promptly notify the
Borrowers and the Borrowers shall immediately pay such
corresponding amount to the Agent. The Agent shall also be
entitled to recover from such Bank or the Borrowers, as the
case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount
was made available by the Agent to the Borrowers to the date
such corresponding amount is recovered by the Agent, at a
per annum rate equal to (i) if paid by such Bank, within two
Business Days of making such corresponding amount available
to the Borrowers, the overnight Federal Funds Rate, and
thereafter the Prime Rate, and (ii) if paid by the
<PAGE>17
Borrowers, the then applicable rate calculated in accordance with
Section 2.04.
2.03 Repayment. The Revolving Loans hereunder shall be due
and payable in full on the Termination Date.
2.04 Interest. Subject to the provisions of Section 3.01,
Revolving Loans shall bear interest as follows:
(a) Prime Rate Loans. During such periods as
Revolving Loans shall consist of Prime Rate Loans, at a
per annum rate equal to the Prime Rate in effect from
time to time.
(b) Eurodollar Loans. During such periods as
Revolving Loans shall consist of Eurodollar Loans, at a
per annum rate equal to the sum of the Adjusted
Eurodollar Rate plus .25%.
(c) Adjusted CD Loans. During such periods as
Revolving Loans shall consist of Adjusted CD Loans, at
a per annum rate equal to the sum of the Adjusted CD
Rate plus .375%.
(d) Payment of Interest. Interest on Revolving
Loans hereunder shall be payable in arrears on each
Interest Payment Date.
2.05 Revolving Note(s). The Loans by each Bank shall
be evidenced by a duly executed promissory note of the
Borrowers to each such Bank dated as of the Closing Date in
an original principal amount equal to such Bank's Committed
Amount and substantially in the form of Exhibit B.
2.06 Bankers' Acceptance Subfacility.
(a) Creation. Subject to the terms and
conditions hereof, at any time and from time to
time from the Closing Date through the day 30 days
prior to the Termination Date, the Accepting Bank
shall create and discount such Bankers'
Acceptances as Borrowers may request by notice to
the Accepting Bank in accordance with the
procedure set forth in subparagraph (b) hereof;
provided, however, the Accepting Bank shall not be
obligated to create and discount any Bankers'
Acceptance to the extent that immediately after
the creation and discounting of such Bankers'
Acceptance either (a) the sum of the outstanding
principal balance of all Revolving Loans, Bid Rate
Loans and Bankers' Acceptances Outstanding would
exceed the then applicable Maximum Commitment. The
maturity of any Bankers' Acceptance shall be no
less than 30 days and shall not exceed 180 days
<PAGE>18
and shall not extend beyond the Termination Date. Each
Banker's Acceptance shall comply with the Acceptance
Documents and shall be executed on behalf of the Borrowers
and presented to the Accepting Bank pursuant to such
procedures as are provided for in the Acceptance Documents
or otherwise provided or required by the Accepting Bank.
The face amount of any Bankers' Acceptance shall be an
integral multiple of $1,000,000 and shall not be less than
$2,000,000. The creation and maturity date of each Bankers'
Acceptance shall be a Business Day. Notwithstanding the
foregoing, the Accepting Bank, shall not be obligated to
create or discount any Bankers' Acceptance (i) that is not
eligible pursuant to 12 U.S.C. 372, as amended from time to
time, (ii) if creation thereof would cause the Accepting
Bank to exceed the maximum amount of outstanding bankers'
acceptances permitted by applicable law, or (iii) if, in the
reasonable opinion of the Accepting Bank, general conditions
in the public market for rediscounting bankers' acceptances
render it inadvisable to do so.
(b) Notice. Each request for a Bankers'
Acceptance shall be submitted in writing (or
requested by telephone and promptly confirmed in
writing) to the Accepting Bank by 11:00 a.m.
(Charlotte, North Carolina) on the date of
creation of the requested Bankers' Acceptance and
shall be accompanied by such documents as are
specified therein and in the Acceptance Documents.
Upon the creation of a Bankers' Acceptance, the
Accepting Bank shall promptly notify the Banks and
the Agent of the amount and tenor thereof.
(c) Issuance Fee. (1) Upon the creation by
the Accepting Bank of a Bankers' Acceptance, the
Borrowers shall pay the Accepting Bank an issuance
fee of $100.00 and the Accepting Bank shall
discount such Bankers' Acceptance by deducting
from the face amount thereof a discount determined
by the then current quoted discount rate for
bankers' acceptances of the Accepting Bank plus a
commission of .45%, (the "BA Commission") as in
effect from time to time, with such discount and
BA Commission applied against the face amount of
the Bankers' Acceptance and the Accepting Bank
shall make such net amount available in
immediately available funds to Borrowers.
Promptly after the issuance of any Bankers'
Acceptance, the Accepting Bank shall make
available in immediately available funds to the
Banks, according to their respective Commitment
<PAGE>19
Percentages, an amount equal to the applicable BA
Commission relating thereto. The Accepting Bank may retain
or rediscount, at its election, any Bankers' Acceptance and
the amount received by the Accepting Bank upon payment
thereof at maturity or upon rediscounting shall be solely
for the account of the Accepting Bank subject, however, to
any participations therein in favor of the Banks.
(d) Payment. As and when the Accepting Bank
honors a Bankers' Acceptance, the Borrowers hereby
agree to immediately repay the Accepting Bank in
immediately available funds the amount advanced by the
Accepting Bank. In the event that such funds are not
made available to the Accepting Bank by the Borrowers,
then, in order to implement the foregoing, the
Borrowers irrevocably authorize the Agent and the Banks
to treat each such advance by the Accepting Bank as a
request for a Prime Rate Loan in the amount of such
advance, to issue Prime Rate Loans simultaneously with
any such advance in the aggregate amount of such
advance, and to credit the proceeds of such Prime Rate
Loan so as to immediately eliminate the liability of
the Borrowers to the Accepting Bank pertaining to such
Bankers' Acceptance and immediately eliminate the
liability of each other Bank to the Accepting Bank with
respect to its Commitment Percentage relating to such
Bankers' Acceptance.
(e) Purchase of Participations. Upon the
creation and discounting of a Bankers' Acceptance, each
Bank shall be deemed to have purchased a participation
from the Accepting Bank in an amount equal to the
result obtained by multiplying (i) such Bank's
Commitment Percentage, times (ii) the face amount of
such Bankers' Acceptance. Without limiting the scope
and nature of each Bank's participation in any Bankers'
Acceptance, to the extent that the Accepting Bank has
not been reimbursed by Borrowers (pursuant to an
advance hereunder or otherwise) for any payment
required to be made by the Accepting Bank under any
Bankers' Acceptance, each Bank shall, according to its
Commitment Percentage, reimburse the Accepting Bank
promptly upon demand for the amount of such payment.
The obligation of each Bank to so reimburse the
Accepting Bank shall be absolute and unconditional and
shall not be affected by the occurrence of a Default,
an Event of Default or any other occurrence or event;
provided, however, the Banks shall not be obligated to
reimburse the Accepting Bank as provided above to the
extent that such reimbursement obligation has arisen on
account of the gross negligence or willful misconduct
of the Accepting Bank, as determined by a court of
competent jurisdiction. Any such reimbursement shall
<PAGE>20
not relieve or otherwise impair the obligation of Borrowers
to reimburse the Accepting Bank for the amount of any
payment made by the Accepting Bank under the Bankers'
Acceptance, together with interest at a per annum rate equal
to the Prime Rate plus 2%. The Borrowers hereby
specifically acknowledge and agree that in the event the
Borrowers fail to perform in accordance with the terms of
the Bankers' Acceptance, the Acceptance Documents related
thereto or this Amended and Restated Loan Agreement as it
relates to such Bankers' Acceptance, each Bank shall for
purposes of Section 10.02 or otherwise have a direct claim
against the Borrowers, to the extent of such Bank's pro rata
participation in such Bankers' Acceptance. Notwithstanding
the other provisions of this Section 2.06(e), no Bank shall
be deemed to have purchased a participation in a Bankers'
Acceptance from the Accepting Bank or to have any obligation
relating thereto unless the sum of each such Bank's
outstanding Revolving Loans plus such Bank's share of
Bankers' Acceptances Outstanding (including the Bankers'
Acceptance then under consideration) shall not exceed such
Bank's Committed Amount.
(f) Limitation of Liability. Neither the
Accepting Bank, any other Bank nor any of their
respective directors, officers or employees shall
be liable, except for gross negligence or willful
misconduct, for any action taken or omitted under
or in connection with any Bankers' Acceptance, any
draft to which a Bankers' Acceptance relates or
any documents which in turn relate or pertain to
any such draft. When dealing with any such
Bankers' Acceptance, draft or related documents,
the Accepting Bank shall be entitled to act (and
shall be fully protected against any claim of loss
by the Borrowers occasioned by the lack, or
claimed lack, of authenticity or authority of the
issuance of any draft or any signature thereon, in
acting upon) any telegram, telex, teletype, bank
wire, cable or radiogram or any written
application, notice, report, statement,
certificate, resolution, request, order, consent,
letter or other instrument or communication
reasonably believed by the Accepting Bank to be
genuine and correct and to have been signed or
sent or made by a proper Person. The Borrowers
further agree that, in the event that any Bankers'
Acceptance shall not, in the reasonable opinion of
the Agent or the Majority Banks, meet all
requirements for eligible Bankers' Acceptances (as
determined in accordance with12 U.S.C. 372), the
Borrowers shall, upon demand by the Agent, pay to
the Agent for the account of each of the Banks
<PAGE>21
additional amounts sufficient to compensate the Banks for
any increased costs resulting therefrom (including without
limitation costs resulting from any reserve requirement,
premium liability to the Federal Deposit Insurance
Corporation, or a higher discount rate). A detailed
statement as to the amount of such increased costs, prepared
in good faith and submitted by the Agent to the Borrowers,
shall be conclusive and binding for all purposes, absent
manifest error in computation.
2.07 Bid Rate Loans.
(a) Request for Bid Rate Loan. The Borrowers may
from time to time, not later than 12:00 noon
(Charlotte, North Carolina time) on a Business Day not
less than three Business Days nor more than ten
Business Days prior to the date of advance for any
requested Bid Rate Loan, submit a Request for Bid Rate
Loan. Each Request for Bid Rate Loan shall be
submitted to the Agent in writing in substantially the
form of Exhibit C specifying (i) the dates and
aggregate amounts of such proposed Bid Rate Loans, (ii)
the applicable Interest Periods (and Interest Payment
Dates if they are to differ from those provided herein)
and (iii) any other terms to be applicable to such Bid
Rate Loans. The Agent shall promptly notify each Bank
of its receipt of a Request for a Bid Rate Loan and the
substance thereof. Each Request for Bid Rate Loan
shall be in a minimum aggregate principal amount of
$2,000,000 (and in integral multiples of $1,000,000 in
excess thereof) not to exceed, however, the amount of
aggregate Revolving Loans available to be made on the
applicable advance date.
(b) Bid Procedure. Each Bank (or any of its
Affiliates) in its discretion may, but shall not be
obligated to, submit a Bid Rate Offer in response to
one or more of the Requests for Bid Rate Loans by
delivery of the terms thereof to the Agent not later
than 10:30 a.m. (Charlotte, North Carolina time) on the
Business Day of the requested Bid Rate Loan; provided,
that if the Agent in its capacity as a Bank shall, in
its discretion, elect to make any such offer, it shall
notify the Borrowers of such offer and the terms
thereof by 9:30 a.m. (Charlotte, North Carolina time)
on the Business Day of the requested Bid Rate Loan. A
Bank (or any of its Affiliates) may offer to make all
or part of the requested Bid Rate Loan regardless of
whether the Bid Rate Loan exceeds the Commitment of
such Bank. The Bid Rate Offer shall specify (i) the
particular Request for Bid Rate Loan with regard to
which the Bank (or any of its Affiliates) is making its
offer, (ii) the maximum and minimum amounts of such
<PAGE>22
proposed Bid Rate Loan with regard to which the Bank is
making its offer, (iii) the interest rate(s) and Interest
Periods therefor, and (iv) any other terms to be applicable
to such Bid Rate Loan. Any such Bid Rate Offer shall be
irrevocable; provided that omitted information may be added
and information previously provided may be corrected until
such required times.
(c) Acceptance of Bid Rate Offers. The Agent
shall promptly notify the Borrowers of all Bid Rate
Offers received within the required time and the
contents thereof. The Borrowers may then, but shall
not be obligated to, accept one or more of the Bid Rate
Offers, in whole or in part by written notice or
telephonic notice (confirmed immediately thereafter in
writing) thereof to the Agent by 12:00 noon (Charlotte,
North Carolina time) on the Business Day of the
requested Bid Rate Loan; provided, that if the
Borrowers elect to accept one or more Bid Rate Offers,
such acceptance shall be made on the basis of ascending
Offered Rates of similar time periods. In the event
two or more Bid Rate Offers offer the same interest
rate, the Banks making such Bid Rate Offers shall share
equally in the Bid Rate Loan advance. Acceptance of
any Bid Rate Offers shall be a minimum aggregate
principal amount of $1,000,000 and shall be
irrevocable. Failure by the Borrowers to accept any
such Bid Rate Offers on a timely basis shall be deemed
to be a rejection of such Bid Rate Offers. The Agent
shall then promptly notify all of the Banks (including
particularly the Banks which had all or a portion of
their Bid Rate Offer accepted) of the Borrowers'
acceptance or rejection of Bid Rate Offers, and the
terms of any Bid Rate Loans to be made.
(d) Funding of Bid Rate Loans. Each Bank that is
to make a Bid Rate Loan shall, by 3:00 p.m. (Charlotte,
North Carolina time) on the date specified in the
Request for Bid Rate Loan, make its portion of the Bid
Rate Loan available to the Agent by deposit in U.S.
dollars of immediately available funds at the offices
of the Agent as provided (and subject to the provisions
concerning a failure to so fund such Bid Rate Loan) in
Section 2.01(c). Upon fulfillment of the applicable
conditions set forth in Section 2.08 and after receipt
by the Agent of such funds, the Agent will make such
Bid Rate Loan available to the Borrowers.
(e) Effect of Bid Rate Loans on Commitments. The
sum of Revolving Loans, Bid Rate Loans and Bankers'
<PAGE>23
Acceptances Outstanding hereunder shall not at any time
exceed the aggregate Committed Amounts of the Banks. Bid
Rate Loans hereunder shall serve to reduce amounts otherwise
available under the Commitments, the amount of which
reduction shall be allocated ratably to all the Banks.
(f) Maturity of Bid Loans. Each Bid Loan shall
mature and be due and payable on the last day of the
Interest Period applicable thereto. Unless the
Borrowers shall give notice to the Agent otherwise, the
Borrowers shall be deemed to have given a Notice for
Borrowing for a Revolving Loan, the proceeds of which
shall be used to pay the maturing Bid Rate Loan.
(g) Bid Rate Notes. The Bid Rate Loans of each
Bank (and its Affiliates) shall be evidenced by a
single master Bid Rate Note payable to the order of
such Bank (and its Affiliates).
2.08 Conditions of Lending.
(a) Conditions. The obligation of any Bank to
make any Revolving Loan or any Bid Rate Loan or to
issue any Bankers' Acceptance hereunder is subject to
satisfaction of the following conditions:
(i) receipt of a Notice of Borrowing
pursuant to Section 2.02(a), a request for a
Bankers' Acceptance pursuant to Section 2.06, or
Request for a Bid Rate Loan pursuant to Section
2.07(a), as appropriate;
(ii) the representations and warranties set
forth in Article V hereof shall be true and
correct in all material respects as of the date of
the requested Loan or Banker's Acceptance (except
for those which expressly relate to an earlier
date);
(iii) immediately after giving effect to the
requested Loan or Banker's Acceptance, the sum of
the outstanding principal balance of all Revolving
Loans, Bid Rate Loans and Bankers' Acceptances
Outstanding would not exceed the then applicable
Maximum Commitment; and
(iv) no Default or Event of Default shall
exist and be continuing either prior to or after
giving effect thereto.
(b) Reaffirmation. Each request for a Loan
or a Bankers' Acceptance shall be deemed to be a
representation and warranty of the correctness of
<PAGE>24
the matters specified in these subsections (a)(ii), (iii)
and (iv) hereof.
2.09 Termination of Commitments. The Borrowers may from
time to time permanently terminate the Commitments in whole or in
part (in minimum aggregate amounts of $5,000,000) upon three
Business Days' prior written notice to the Agent; provided,
however, the Borrower may not reduce the Commitments to an amount
which is less than the then outstanding principal amount of the
Loans.
2.10 Fees. The Borrowers have agreed to pay the Agent and
the Banks certain fees as set forth in the fee agreements by and
between the Borrowers and the Agent and the Borrowers and each
Bank.
2.11 Extension of Termination Date. The Borrowers may,
within not less than one month prior to May 31, 1996 and within
one month prior to each May 31 thereafter (each of such dates
hereinafter being referred to as an "Extension Date"), by notice
to the Agent, make written request of the Banks to extend the
Termination Date for an additional one year period. The Agent
will give prompt notice to each of the Banks of its receipt of
any such request for extension of the Termination Date. Each
Bank shall make a determination not later than the then
applicable Extension Date as to whether or not it will agree to
extend the Termination Date as requested; provided, however, that
failure by any Bank to make a timely response to the Borrowers'
request for extension of the Termination Date shall be deemed to
constitute a refusal by the Bank to extend the Termination Date.
If, in response to a request for an extension of the Termination
Date, one or more Banks shall fail to agree to the requested
extension (the "Disapproving Banks"), then provided that the
requested extension is approved by Banks holding at least 51% of
the Commitments hereunder (the "Approving Banks"), the credit
facilities under Article II may be extended and continued at a
lower aggregate amount equal to the Commitments held by the
Approving Banks. In any such case, (i) the Termination Date
relating to the Commitments held by the Disapproving Banks shall
remain as then in effect with repayment of the Obligations held
by such Disapproving Banks being due on such date and termination
of their respective Commitments on such date, (ii) the
Termination Date relating to the Commitments held by the
Approving Banks shall be extended by an additional one year
period, and (iii) the Borrowers may, at their own expense and
with the assistance of the Agent, make arrangements for another
bank or financial institution reasonably acceptable to the Agent
to acquire, in whole or in part, the Obligations and Commitments
of the Disapproving Banks. Where any such arrangements are made
for another bank or financial institution to acquire the
Obligations and Commitments of a Disapproving Bank, or any
portion thereof, then upon payment of the Obligations and
termination of the Commitments relating thereto, such
Disapproving Bank shall promptly transfer and assign, in whole or
<PAGE>25
in part, as requested, without recourse (in accordance with and
subject to the provisions of Section 10.03(b)), all or part of
its interests, rights and obligations under this Amended and
Restated Loan Agreement to such bank or financial institution
which shall assume such assigned obligations (which assignee may
be another Bank, if a Bank accepts such assignment).
ARTICLE III
ADDITIONAL PROVISIONS REGARDING LOANS
3.01 Default Rate. Upon the occurrence, and during the
continuance, of an Event of Default hereunder, the principal of
and, to the extent permitted by law, interest on the Loans
hereunder and any other amounts owing hereunder or under the
other Loan Documents shall bear interest, payable on demand, at a
per annum rate 2% greater than the rate which would otherwise be
applicable.
3.02 Prepayments.
(a) Voluntary Prepayments. The Borrowers shall
have the right to prepay Loans in whole or in part from
time to time without premium or penalty without prior
notice with respect to Prime Rate Loans and upon one
Business Day's prior written notice or telephonic
notice (confirmed immediately thereafter in writing) to
the Agent with respect to all other Loans; provided,
however, that (A) Eurodollar Loans, Adjusted CD Loans
and Bid Rate Loans may only be prepaid on the last day
of an Interest Period applicable thereto, and (B) each
such partial prepayment shall be a minimum principal
amount of $1,000,000. Amounts prepaid on the Loans may
be reborrowed in accordance with the provision hereof.
If the Borrowers shall fail to specify the manner of
application, prepayments shall be applied first to
Prime Rate Loans, then to Eurodollar Loans and Adjusted
CD Loans in direct order of their Interest Period
maturities.
(b) Mandatory Prepayments. If at any time the
sum of the outstanding principal balances of the
Revolving Loans, the Bid Rate Loans and the Bankers'
Acceptances Outstanding shall exceed the then
applicable Maximum Commitment, then the Borrowers shall
immediately pay the Agent for the account of the Banks
an amount equal to such excess. Payments made
hereunder shall be applied first, to the Revolving
Loans (and with respect to the types of Revolving Loans
comprising the Revolving Loans, first to Prime Rate
Loans and then to Eurodollar Loans and Adjusted CD
Loans in direct order of their Interest Period
maturities), second to the Bid Rate Loans and third, to
<PAGE>26
a cash collateral account as additional security for the
reimbursement obligations which thereafter may arise on
account of subsequent payments under Bankers' Acceptances
still outstanding, in an amount equal to the then
outstanding Bankers' Acceptances Outstanding.
3.03 Conversion. The Borrowers shall have the option, on
any Business Day, to extend existing Loans into a subsequent
Interest Period or to convert Loans into Loans of another type;
provided, however, that (i) except as provided in Section 3.04,
Eurodollar Loans and Adjusted CD Loans may be converted into
Loans of another type only on the last day of an Interest Period
applicable thereto, (ii) Eurodollar Loans and Adjusted CD Loans
may be extended, and Loans may be converted into Eurodollar Loans
or Adjusted CD Loans, only if no Default or Event of Default is
in existence on the date of extension or conversion, (iii) Loans
extended as, or converted into, Eurodollar Loans or Adjusted CD
Loans shall be in such minimum amounts as provided in Section
2.02(b), and (iv) any request for extension or conversion of a
Eurodollar Loan or Adjusted CD Loan which shall fail to specify
an Interest Period shall be deemed to be a request for an
Interest Period of one month or 30 days, respectively. Each such
extension or conversion shall be effected by the Borrowers by
giving written notice (or telephone notice promptly confirmed in
writing) to the Agent (including requests for extensions and
renewals, a "Notice of Conversion") prior to 11:00 a.m.
(Charlotte, North Carolina time) on the Business Day of, in the
case of Prime Rate Loans, on the second Business Day prior to, in
the case of Adjusted CD Loans, and on the third Business Day
prior to, in the case of Eurodollar Loans, the date of the
proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or
converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods
with respect thereto. Each request for extension or conversion
shall be deemed to be a reaffirmation by the Borrowers that no
Default or Event of Default then exists and is continuing and
that the representations and warranties set forth in Article V
are true and correct in all material respects (except to the
extent they relate to an earlier period). In the event the
Borrowers fail to request extension or conversion of any
Eurodollar Loan or Adjusted CD Loan in accordance with this
Section, or any such conversion or extension is not permitted or
required by this Section, then such Loans shall be automatically
converted into Prime Rate Loans at the end of their Interest
Period. The Agent shall give each Bank notice as promptly as
practicable of any such proposed conversion affecting any Loans.
3.04 Increased Costs, Illegality, etc. In the event any
Bank shall determine (which determination shall be final and
conclusive and binding on all the parties hereto absent manifest
error) that:
<PAGE>27
(a) Unavailability. On any date for determining
the appropriate Adjusted Eurodollar Rate or Adjusted CD
Rate for any Interest Period, that by reason of any
changes arising on or after the date of this Amended
and Restated Loan Agreement affecting the interbank
Eurodollar market or the certificate of deposit market,
dollar deposits in the principal amount requested are
not generally available in the interbank Eurodollar
market, in the case of Eurodollar Loans, or quotes for
determination of the Adjusted CD Rate are unavailable,
in the case of Adjusted CD Loans, or adequate, and fair
means do not exist for ascertaining the applicable
interest rate on the basis provided for in the
definition of Adjusted Eurodollar Rate or Adjusted CD
Rate, respectively; then Eurodollar Loans or Adjusted
CD Loans, as appropriate, will no longer be available,
and requests for a Eurodollar Loan or Adjusted CD Loans
shall be deemed requests for Prime Rate Loans, until
such time as such Bank shall notify the Borrowers that
the circumstances giving rise thereto no longer exist.
(b) Increased Costs. At any time, that such Bank
shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect
to the making, the commitment to make or the
maintaining of any Eurodollar Loans or Adjusted CD
Loans because of (x) any change since the date of this
Amended and Restated Loan Agreement in any applicable
law, governmental rule, regulation, guideline or order
(or in the interpretation or administration thereof and
including the introduction of any new law or
governmental rule, regulation, guideline or order) in-
cluding without limitation the imposition, modification
or deemed applicability of any reserves, deposits or
similar requirements as related to Eurodollar Loans or
Adjusted CD Loans (such as, for example, but not
limited to, a change in official reserve requirements,
but, in all events, excluding reserves required under
Regulation D to the extent included in the computation
of the Adjusted Eurodollar Rate or Adjusted CD Rate, as
appropriate) and/or (y) other circumstances affecting
such Bank, the certificate of deposit market, the
interbank Eurodollar market or the position of such
Bank in such market; then the Borrowers shall pay to
such Bank promptly upon written demand therefor, such
additional amounts (in the form of an increased rate
of, or a different method of calculating, interest or
otherwise as such Bank may determine in its sole
discretion) as may be required to compensate such Bank
for such increased costs or reductions in amounts
receivable hereunder (written notice as to the
additional amounts owed to such Bank, showing the basis
for calculation thereof, shall, absent manifest error,
<PAGE>28
be final and conclusive and binding on all parties hereto).
(c) Illegality. At any time, that the making or
continuance of any Eurodollar Loan has become unlawful
by compliance by such Bank in good faith with any law,
governmental rule, regulation, guideline or order (or
would conflict with any such governmental rule,
regulation, guideline or order not having the force of
law even though the failure to comply therewith would
not be unlawful), or has become impractical as a result
of a contingency occurring after the date of this
Amended and Restated Loan Agreement which materially
and adversely affects the interbank Eurodollar market;
then Eurodollar Loans will no longer be available,
requests for Eurodollar Loans shall be deemed requests
for Prime Rate Loans and the Borrowers may, and upon
direction of the Bank, shall, as promptly as possible
and, in any event within the time period required by
law, have any such Eurodollar Loans then outstanding
converted into Prime Rate Loans.
3.05 Increased Costs and Reduced Return.
(a) If the Agent shall have determined that the
adoption or implementation of, or any change in, any
law, rule, treaty or regulation, or any policy,
guideline or directive of, or any change in the
interpretation or administration thereof by, any court,
central bank or other administrative or governmental
authority, or compliance by the Accepting Bank, any
Bank or any lending office of any Bank with any
directive of or guideline from any central bank or
other governmental authority or the introduction of or
change in any accounting principles applicable to the
Accepting Bank, any Bank or any lending office of any
Bank (in each case, whether or not having the force of
law), shall (i) change the basis of taxation of
payments to the Accepting Bank, any Bank or any lending
office of any Bank of any amounts payable hereunder
(except for taxes on the overall net income of the
Accepting Bank, any Bank or any lending office of any
Bank), (ii) impose, modify or deem applicable any
reserve, special deposit or similar requirement against
any Loan or Acceptance Document or against assets of or
held by, or deposits with or for the account of, or
credit extended by, the Accepting Bank, any Bank or any
lending office of any Bank, or (iii) impose on the
Accepting Bank, any Bank or any lending office of any
Bank any other condition regarding this Amended and
Restated Loan Agreement or any Acceptance Document, and
the result of any event referred to in clauses (i),
(ii) or (iii) above shall be to increase the cost to
the Accepting Bank, any Bank or any lending office of
<PAGE>29
any Bank of making any Loan, issuing any Bankers'
Acceptance, or maintaining its Commitment to make any Loan
or issue any Bankers' Acceptance, or to reduce any amount
received or receivable by the Accepting Bank or any Bank
hereunder, then, upon demand by the Accepting Bank or such
Bank, the Borrowers shall pay to the Accepting Bank or such
Bank such additional amounts as will compensate the
Accepting Bank or such Bank for such increased costs or
reductions in amount, together with interest on such
additional amounts.
(b) If any Bank or the Accepting Bank shall have
determined that any Capital Guideline or adoption or
implementation of, or any change in, any Capital
Guideline by the governmental authority charged with
the interpretation or administration thereof, or
compliance by the Accepting Bank, any Bank or any
lending office of such Bank with any Capital Guideline
or with any request or directive of any such
governmental authority with respect to any Capital
Guideline, of the implementation of, or any change in,
any applicable accounting principles (in each case,
whether or not having the force of law), either (i)
affects or would affect the amount of capital required
or expected to be maintained by the Accepting Bank, any
Bank or any lending office of such Bank, and the
Accepting Bank or such Bank determines that the amount
of such capital is increased as a direct or indirect
consequence of any Loans made or maintained, Bankers'
Acceptances issued, or any Commitment to make Revolving
or to issue Bankers' Acceptances, or the Accepting
Bank's, such Bank's or such lending office's other
obligations hereunder, or (ii) has or would have the
effect of reducing the rate of return on the Accepting
Bank's, such Lender's or such lending office's capital
to a level below that which the Accepting Bank or such
Bank could have achieved but for such circumstances as
a consequence of any Loans made or maintained or
Bankers' Acceptances issued, or the Commitment to make
Revolving Loans or to issue Bankers' Acceptances or the
Accepting Bank's, such Bank's or such lending office's
other obligations hereunder (in each case, taking into
consideration the Accepting Bank's, the Bank's or such
lending office's policies with respect to capital
adequacy), then, upon demand by the Accepting Bank or
such Bank, the Borrowers shall pay to the Accepting
Bank or such Bank from time to time such additional
amounts as will compensate the Accepting Bank or such
Bank for such cost of maintaining such increased
capital or such reduction in the rate of return on the
Accepting Bank's, such Bank's or such lending office's
capital.
<PAGE>30
(c) Upon determining in good faith that any
additional amounts will be payable pursuant to this
Section, the Accepting Bank or any Bank will give
prompt written notice thereof to the Borrowers, which
notice shall set forth the basis of the calculation of
such additional amounts, although the failure to give
any such notice shall not release or diminish any of
the Borrowers' obligations to pay additional amounts
pursuant to this Section. Determination by the
Accepting Bank or any Bank of amounts owing under this
Section shall, absent manifest error, be final and
conclusive and binding on the parties hereto. Failure
on the part of the Accepting Bank or any Bank to demand
compensation for any period hereunder shall not
constitute a waiver of the Accepting Bank's or such
Bank's rights to demand any such compensation in such
period or in any other period.
(d) All amounts payable under this Section 3.05
shall bear interest from the date that is three
Business Days after the date of demand by the Accepting
Bank, or any Bank until payment in full to the
Accepting Bank, or such Bank at a per annum rate equal
to the Prime Rate plus 2%.
3.06 Compensation. The Borrowers shall compensate
each Bank, upon its written request (which request shall set
forth the basis for requesting such compensation), for all
reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred
by reason of the liquidation or reemployment of deposits or
other funds required by the Bank to fund its Eurodollar
Loans or Adjusted CD Loans) which such Bank may sustain:
(a) if for any reason (other than a default by
such Bank or the Agent) a borrowing of Eurodollar Loans
or Adjusted CD Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of
Conversion;
(b) if any repayment or conversion of any
Eurodollar Loan or Adjusted CD Loan occurs on a date
which is not the last day of an Interest Period
applicable thereto;
(c) if any prepayment of any Eurodollar Loan or
Adjusted CD Loan is not made on any date specified in a
notice of prepayment given by the Borrowers; or
(d) as a consequence of (x) any other default by
the Borrowers to repay their Loans when required by the
terms of this Agreement or (y) an election made
pursuant to this Section.
<PAGE>31
Calculation of all amounts payable to a Bank under this Section
shall be made as though the Bank has actually funded its relevant
Eurodollar Loan or Adjusted CD Loan through the purchase of a
Eurodollar deposit bearing interest at the Eurodollar Rate or a
certificate of deposit bearing interest at the Adjusted CD Rate,
as appropriate, in an amount equal to the amount of that Loan,
having a maturity comparable to the relevant Interest Period and
in the case of Eurodollar Loans, through the transfer of such
Eurodollar deposit from an offshore office of that Bank to a
domestic office of that Bank in the United States of America;
provided, however, that each Bank may fund each of its Eurodollar
Loans in any manner it sees fit and the foregoing assumption
shall be utilized only for the calculation of amounts payable
under this Section.
3.07 Taxes. (a) All payments made by the Borrowers
hereunder, under the Notes or under any Loan Document will be
made without setoff, counterclaim, deduction or other defense.
All such payments shall be made free and clear of and without
deduction for any present or future income, franchise, sales,
use, excise, stamp or other taxes, levies, imposts, deductions,
charges, fees, withholdings, restrictions or conditions of any
nature now or hereafter imposed, levied, collected, withheld or
assessed by any jurisdiction (whether pursuant to United States
Federal, state, local or foreign law) or by any political
subdivision or taxing authority thereof or therein, and all
interest, penalties or similar liabilities, excluding taxes on
the overall net income of the Bank or the Accepting Bank, (such
nonexcluded taxes are hereinafter collectively referred to as the
"Taxes"). If the Borrowers shall be required by law to deduct or
to withhold any Taxes from or in respect of any amount payable
hereunder, (i) the amount so payable shall be increased to the
extent necessary so that after making all required deductions and
withholdings (including Taxes on amounts payable to the Agent,
the Banks or the Accepting Bank pursuant to this sentence) the
Agent, the Banks, the Accepting Bank receive an amount equal to
the sum they would have received had no such deductions or
withholdings been made, (ii) the Borrowers shall make such
deductions or withholdings, and (iii) the Borrowers shall pay the
full amount deducted or withheld to the relevant taxation
authority in accordance with applicable law. Whenever any Taxes
are payable by the Borrowers, as promptly as possible thereafter,
the Borrowers shall send the Banks, the Accepting Bank and the
Agent an official receipt showing payment. In addition, the
Borrowers agree to pay any present or future taxes, charges or
similar levies which arise from any payment made hereunder or
from the execution, delivery, performance, recordation or filing
of, or otherwise with respect to, this Amended and Restated Loan
Agreement, the Notes, the Acceptance Documents or any other Loan
Document (hereinafter referred to as "Other Taxes").
(b) The Borrowers will indemnify the Agent, the Banks
and the Accepting Bank for the amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other
<PAGE>32
Taxes imposed by any jurisdiction on amounts payable under this
Section 3.07) paid by any Bank or the Accepting Bank and any
liability (including penalties, interest and expenses for
nonpayment, late payment or otherwise) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
paid within 30 days from the date on which the Agent, such Bank
or the Accepting Bank makes written demand; provided, however,
the Borrowers shall have the right to contest any such Taxes
before any appropriate administrative agency or court of
competent jurisdiction so long as such Bank is not adversely
affected by any such contest.
(c) Each Bank which is a foreign person (i.e., a
Person other than a United States Person for United States
Federal income tax purposes) hereby agrees that:
(i) it shall, no later than the Effective
Date (or, in the case of a Bank which becomes a
party hereto pursuant to Section 10.03(b) hereof
after the Effective Date, the date upon which such
Bank becomes a party hereto) deliver to the
Borrowers through the Agent:
(A) two accurate and complete signed
originals of Form 4224, or
(B) two accurate and complete signed
originals of Form 1001,
in each case indicating that such Bank is on the
date of delivery thereof entitled to receive
payments of principal, interest and fees for the
account of such lending office or offices under
this Amended and Restated Loan Agreement free from
withholding of United States Federal income tax;
(ii) if at any time such Bank changes its
lending office or offices or selects an additional
lending office, it shall, at the same time or
reasonably promptly thereafter, deliver to the
Borrowers through the Agent in replacement for, or
in addition to, the forms previously delivered by
it hereunder;
(A) if such changed or additional
lending office is located in the United
States, two accurate and complete signed
originals of Form 4224, or
(B) otherwise, two accurate and
complete signed originals of Form 1001,
<PAGE>33
in each case indicating that such Bank is on the
date of delivery thereof entitled to receive
payments of principal, interest and fees for the
account of such changed or additional lending
office under Amended and Restated this Loan
Agreement free from withholding of United States
federal income tax; and
(iii) it shall, promptly upon the Borrowers'
reasonable request to that effect, deliver to the
Borrowers such other forms or similar
documentation as may be required from time to time
by any applicable law, treaty, rule or regulation
in order to establish such Bank's tax status for
withholding purposes.
(d) If the Borrowers fail to perform their obligations
under this Section 3.07, the Borrowers shall indemnify the
Banks and the Accepting Bank for any incremental taxes,
interest or penalties that may become payable as a result of
any such failure.
3.08 Change of Lending Office. Each Bank agrees that, upon
the occurrence of any event giving rise to the operation of
Section 3.04, 3.05 or 3.07, it will, if requested by the
Borrowers, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office
for any Loans affected by such event, provided that such
designation is made on such terms that such Bank and its lending
office suffer no disadvantage (including, without limitation, no
economic, legal or regulatory disadvantage), with the object of
avoiding the consequence of the event giving rise to the opera-
tion of any such Section. Nothing in this Section shall affect
or postpone any of the obligations of the Borrowers or the right
of any Bank provided in Section 3.04, 3.05, or 3.07.
3.09 Late Payment Fee. Should any principal installment
payment be in default for more than 15 days, there may be
imposed, to the extent permitted by law, a delinquency charge not
to exceed 2% of such installment in default. In addition, at the
Majority Banks' option, any overdue interest, fees and charges
may, for purposes of computing and accruing interest, be deemed
to be a part of the principal balance thereof and interest shall
accrue on a daily compounded basis after such date (at the
applicable rate, including any default rate under Section 3.01)
thereon.
3.10 Payments and Computations. Except as otherwise
specifically provided herein, all payments hereunder shall be
made to the Agent in U.S. dollars in immediately available funds
at its offices in Charlotte, North Carolina not later than 11:00
a.m. (Charlotte, North Carolina time) on the date when due.
Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Agent will
<PAGE>34
thereafter cause to be distributed promptly like funds relating
to the payment of principal, reimbursements of payments made in
connection with the Bankers' Acceptances, or interest or fees
ratably to the Banks entitled to receive such payments in
accordance with the terms of this Amended and Restated Loan
Agreement. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to
accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension
would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next
preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and fees shall be made on
the basis of actual number of days elapsed over a year of 360
days. Interest shall accrue from and include the date of such
Loan, but exclude the date of payment.
ARTICLE IV
CONDITIONS PRECEDENT TO INITIAL LOANS
AND INITIAL BANKERS' ACCEPTANCE
The obligation of the Banks to make the initial Loan or of
the Accepting Bank to accept the initial Bankers' Acceptance
hereunder is subject, at the time of the making of such initial
Loan or the acceptance of such initial Bankers' Acceptance to the
satisfaction of the following conditions (in form and substance
acceptable to the Agent):
4.01 Executed Loan Documents. Receipt by the Agent of
executed copies of this Amended and Restated Loan Agreement and
the other Loan Documents and (in sufficient numbers to provide a
fully executed original of each, except for the Notes, for each
Bank).
4.02 No Default; Representations and Warranties. Both at
the time of the making of such Loan or accepting such Bankers'
Acceptance and after giving effect thereto (i) there shall exist
no Default or Event of Default and (ii) all representations and
warranties contained herein or in the other Loan Documents then
in effect shall be true and correct in all material respects.
4.03 Opinion of Counsel. Receipt by the Agent of an
opinion, or opinions, in form and substance satisfactory to the
Banks, addressed to the Banks and dated as of the Closing Date
from Larry K. Wilcher, general counsel to the Borrowers, which
shall cover the matters contained in Exhibit D hereto (in
sufficient numbers to provide a fully executed original to each
Bank).
<PAGE>35
4.04 Corporate Documents. Receipt by the Agent of the
following:
(a) Articles of Incorporation. Copies of the
articles of incorporation or charter documents of each
of the Borrowers certified to be true and complete as
of a recent date by the appropriate governmental
authority of the states of their incorporation.
(b) Resolutions. Copies of resolutions of the
Board of Directors of each of the Borrowers approving
and adopting the Loan Documents, the transactions
contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant
secretary as of the date of this Amended and Restated
Loan Agreement to be true and correct and in force and
effect as of such date.
(c) Bylaws. A copy of the bylaws of each of the
Borrowers certified by a secretary or assistant
secretary as of the date of this Amended and Restated
Loan Agreement to be true and correct and in force and
effect as of such date.
(d) Good Standing. Copies of (i) certificates of
good standing, existence or its equivalent with respect
to each of the Borrowers certified as of a recent date
by the appropriate governmental authorities of the
state of incorporation and each of the other states
where such Borrower is currently doing business and
(ii) a certificate indicating payment of all corporate
franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
4.05 Insurance Certificates. Receipt by the Agent of
insurance certificates demonstrating the Borrowers'
compliance with Section 6.06 as of the Closing Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby represent and warrant to the Agent
and the Banks that:
5.01 Organization and Good Standing. Each of the
Borrowers and its Subsidiaries are corporations duly
incorporated, validly existing and in good standing under
the laws of the respective states of their incorporation,
are duly qualified and in good standing as foreign
corporations authorized to do business in every jurisdiction
where the failure to so qualify would have a Material
<PAGE>36
Adverse Effect on such Borrower or any such Subsidiary and
have the requisite corporate power and authority to own
their respective properties and to carry on their respective
businesses as now conducted and as proposed to be conducted.
5.02 Due Authorization. Each of the Borrowers (i) has
the corporate power and requisite authority to execute,
deliver and perform this Amended and Restated Loan Agreement
and the other Loan Documents to which it is a party and (ii)
is duly authorized to, and have been authorized by all
necessary corporate action, to execute, deliver and perform
this Amended and Restated Loan Agreement and the other Loan
Documents to which it is a party.
5.03 No Conflicts or Consents. With respect to each
of the Borrowers, neither the execution and delivery of the
Loan Documents, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with
the terms and provisions thereof will (i) violate or
conflict with any provision of its articles of incorporation
or bylaws, (ii) violate, contravene or materially conflict
with any law, regulation (including without limitation
Regulation U or Regulation X), order, writ, judgment,
injunction, decree or permit applicable to it, (iii)
violate, contravene or materially conflict with contractual
provisions of, or cause an event of default under, any
indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or
by which it may be bound, (iv) result in or require the
creation of any lien, security interest or other charge or
encumbrance (other than those contemplated in or in
connection with the Loan Documents) upon or with respect its
properties.
5.04 Consents. No consent, approval, authorization or
order of, or filing, registration or qualification with, any
court or governmental authority or third party is required
in connection with the execution, delivery or performance of
this Amended and Restated Loan Agreement or any of the other
Loan Documents.
5.05 Enforceable Obligations. This Amended and
Restated Loan Agreement and the other Loan Documents have
been duly executed and delivered by the Borrowers and con-
stitute legal, valid and binding obligations of the
Borrowers, enforceable in accordance with their respective
terms, except as may be limited by bankruptcy or insolvency
laws or similar laws affecting creditors' rights generally.
5.06 Financial Condition. The financial statements
and financial information provided to the Banks, consisting
of, among other things, an audited consolidated balance
sheet of the Borrowers dated as of January 31, 1995,
together with related consolidated statements of income,
<PAGE>37retained earnings and cash flows, certified by
Coopers & Lybrand, certified public accountants, as true and
correct, fairly represent the financial condition of the
Borrowers as of such date; such financial statements were
prepared in accordance with generally accepted accounting
principles applied on a consistent basis; and since the date
of such financial statements there have occurred no changes
or circumstances which have had or are very likely to have a
Material Adverse Effect on the Borrowers and the financial
statements referenced above.
5.07 No Default. No Default (which if existing would
have a Material Adverse Effect) or Event of Default
presently exists.
5.08 Liens. Except for Permitted Liens, the Borrowers
and their Subsidiaries have good and marketable title to all
of their respective properties and assets free and clear of
all liens, encumbrances, mortgages, pledges, security
interests and other adverse claims of any nature.
5.09 Indebtedness. Neither of the Borrowers nor any
of its Subsidiaries has Indebtedness (including without
limitation reimbursement or other contingent obligations)
except as disclosed in the financial statements referenced
in Section 5.06 and as set forth in Exhibit E.
5.10 Litigation. Except as disclosed in Exhibit F,
there are no actions, suits or legal, equitable, arbitration
or administrative proceedings, pending or, to the knowledge
of either Borrower threatened, against such Borrower which,
if adversely determined, could have a Material Adverse
Effect on the enforceability of the Loan Documents or on
such Borrower.
5.11 Material Agreements. Neither of the Borrowers
nor any of its Subsidiaries is in default in any respect
under any material contract, lease, loan agreement,
indenture, mortgage, security agreement or other material
agreement or obligation to which it is a party or by which
any of its properties is bound.
5.12 Burdensome Contracts. Neither of the Borrowers
nor any of its Subsidiaries is a party to, or bound by, any
contract, lease, indenture, loan agreement or other
agreement or arrangement the performance of which by such
Borrower or such Subsidiary would have a Material Adverse
Effect on the business, condition (financial or otherwise),
operations or properties of such Borrower or any of such
Subsidiary or on the ability of such Borrower or any of such
Subsidiary to perform its obligations under the Loan
Documents.
<PAGE>38
5.13 Taxes. The Borrowers and their Subsidiaries have
filed, or caused to be filed, all material tax returns
(federal, state, local and foreign) required to be filed and
paid all amounts of taxes shown thereon to be due (including
interest and penalties) and have paid all other taxes, fees,
assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by them, except for such taxes (i)
which are not yet delinquent or (ii) as are being contested
in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with
generally accepted accounting principles. Neither of the
Borrowers is aware of any proposed material tax assessments
against it or any of its Subsidiaries. No extension of time
for assessment or payment by either of the Borrowers or any
of its Subsidiaries of any federal, state or local tax in
effect.
5.14 Compliance with Law. To the best of the
Borrower's knowledge, the Borrowers and their Subsidiaries
are in compliance with all laws, rules, regulations, orders
and decrees (including without limitation Environmental
Laws) applicable to them, or to their properties.
5.15 ERISA. (i) No Reportable Event (as defined in
ERISA) has occurred and is continuing with respect to any
Plan; (ii) no Plan has an unfunded current liability
(determined under Section 412 of the Code) or an accumulated
funding deficiency, (iii) no proceedings have been
instituted, or, to the knowledge of either Borrower,
planned, to terminate any Plan, (iv) neither of the
Borrowers, any member of a Controlled Group, nor any duly-appointed
administrator of a Plan (A) has instituted or intends to institute
proceedings to withdraw from any Multi-Employer Pension Plan (as defined in
Section 3(37) or ERISA); and (iv) each Plan has been maintained and funded in
all material respects with its terms and with the provisions
of ERISA applicable thereto.
5.16 Subsidiaries. The Borrowers have no Subsidiaries
except as set forth on Exhibit G hereto.
5.17 Use of Proceeds; Margin Stock. The proceeds of
Loans made hereunder and Bankers' Acceptances issued
hereunder will be used solely for the purposes of financing
general corporate purposes of the Borrowers. None of such
Loans or Bankers' Acceptances will be used for the purpose
of purchasing or carrying any "margin stock" as defined in
Regulations U, Regulation X or Regulation G, or for the pur-
pose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry "margin stock" or
for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of
Regulation U, Regulation X or Regulation G. Neither of the
<PAGE>39
Borrowers owns any "margin stock" except as identified in
the financial statements referred to in Section 5.06 hereof
and, as of the date hereof, the aggregate value of all
"margin stock" owned by either Borrower does not exceed 10%
of the value of all such Borrower's assets.
5.18 Government Regulation. Neither of the Borrowers
nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940 or the
Interstate Commerce Act, each as amended. In addition,
neither of the Borrowers nor any of its Subsidiaries is (i)
an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as
amended, and is not controlled by such a company, or (ii) a
"holding company," or a "Subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"Subsidiary" or a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
5.19 Hazardous Substances. To the best of the
Borrower's knowledge, the real property owned or leased by
either of the Borrowers and/or any of its Subsidiaries or on
which either of the Borrowers and/or any its Subsidiaries
operates (the "Subject Property") is free from "hazardous
substances" as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601 et seq., as amended, and the regulations promulgated
thereunder; no portion of the Subject Property is subject to
federal, state or local regulation or liability because of
the presence of stored, leaked or spilled petroleum
products, waste materials or debris, "PCB's" or PCB items
(as defined in 40 C.F.R. 763.3), underground storage tanks,
"asbestos" (as defined in 40 C.F.R. 763.63) or the past or
present accumulation, spillage or leakage of any such sub-
stance; and the Borrowers and their Subsidiaries are in
substantial compliance with all Environmental Laws and
neither of the Borrowers knows of any complaint or
investigation regarding real property which it or any of its
Subsidiaries owns or leases or on which it or any of its
Subsidiaries operates.
5.20 Patents, etc. To the best of the Borrower's
knowledge, the Borrowers and their Subsidiaries possess all
material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome
restrictions, that are necessary for the operation of its
business and the businesses of their Subsidiaries as
presently conducted and as proposed to be conducted.
5.21 Solvency. Each of the Borrowers and each of its
Subsidiaries is, and after consummation of this Amended and
Restated Loan Agreement and after giving effect to all
Indebtedness incurred hereunder, will be solvent.
<PAGE>40
5.22 No Financing Of Corporate Takeovers. No proceeds
of the Loans hereunder have been or will be used to acquire
any security in any transaction which is subject to Sections
13 or 14 of the Securities Exchange Act of 1934, as amended,
(including particularly but without limitation Sections
13(d) and 14(d) thereof), directly or indirectly, or to
refinance any indebtedness used to acquire any such
securities.
5.23 Investments. The only investments of the
Borrowers and their Subsidiaries as of the date hereof are
Permitted Investments.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrowers hereby covenant and agree that so long as
this Amended and Restated Loan Agreement is in effect and
until the Loans and Bankers' Acceptances Outstanding,
together with interest, fees and other obligations
hereunder, have been paid in full and the Commitments
hereunder shall have terminated:
6.01 Information Covenants. The Borrowers will
furnish, or cause to be furnished, to the Agent and each
Bank:
(a) Annual Financial Statements. As soon as
available and in any event within 90 days after the
close of each fiscal year of the Borrowers, a
consolidated balance sheet of the Borrowers and their
Subsidiaries as at the end of such fiscal year together
with related statements of income and retained earnings
and of cash flows for such fiscal year, setting forth
in comparative form figures for the preceding fiscal
year, all in reasonable detail and examined by Coopers
& Lybrand, or other independent certified public
accountants of recognized national standing reasonably
acceptable to the Agent and whose opinion shall be to
the effect that such financial statements have been
prepared in accordance with generally accepted
accounting principles applied on a consistent basis and
shall not be qualified as to the scope of the audit or
as to the status of the each Borrower as a going con-
cern, and which shall be accompanied by a certificate
of such accountants stating that in the course of its
regular audit of the business of the Borrowers which
audit was conducted in accordance with generally
accepted auditing standards (including tests of the
accounting records and such other auditing procedures
as were considered necessary in the circumstances) they
<PAGE>41
have obtained no knowledge of any Default or Event of
Default which has occurred and is continuing or, if in the
opinion of such accounting firm such a Default or Event of
Default has occurred and is continuing, a statement as to
the nature thereof, all of the foregoing to be in reasonable
detail and in form and substance satisfactory to the
Majority Banks. It is specifically understood and agreed
that failure of the annual financial statements to be
accompanied by an opinion and certificate of such
accountants in form and substance as provided herein shall
constitute a Default hereunder.
(b) Quarterly Financial Statements. As soon as
available and in any event within 45 days after the end
of each fiscal quarter of each fiscal year of the
Borrowers, a consolidated balance sheet of the
Borrowers and their Subsidiaries as at the end of such
quarterly period together with related statements of
income and retained earnings and of cash flows for such
quarterly period and for the portion of the fiscal year
ending with such period, in each case setting forth in
comparative form figures for the corresponding period
of the preceding fiscal year, all in reasonable form
and detail acceptable to the Majority Banks, subject to
changes resulting from audit and normal year-end
adjustments.
(c) Officer's Certificate. At the time of
delivery of the financial statements provided for in
Sections 6.01(a) and (b) hereof, a certificate of an
authorized financial officer of each of the Borrowers,
substantially in the form of Exhibit H to the effect
that such financial statements have been prepared in
accordance with generally accepted accounting
principles applied on a consistent basis and that such
Borrower is in compliance with the terms of the Amended
and Restated Loan Agreement and the other Loan
Documents and no Default or Event of Default exists, or
if any Default or Event of Default does exist
specifying the nature and extent thereof and what
action such Borrower proposes to take with respect
thereto. In addition, such officer's certificate shall
demonstrate compliance of the financial covenants
contained in Sections 6.11, 6.12 and 6.15 by
calculation thereof as of the end of each such fiscal
period.
(d) Accountant's Certificate. Within the period
for delivery of the annual financial statements
provided in Section 6.01(a), a certificate of the
accountants conducting the annual audit stating that
they have reviewed this Amended and Restated Loan
Agreement and stating further whether, in the course of
<PAGE>42
their audit, they have become aware of any Default or Event
of Default (insofar as any such terms or provisions pertain
to accounting matters) and, if any such Default or Event of
Default exists, specifying the nature and extent thereof.
(e) Other Information. With reasonable
promptness upon any such request, such other
information regarding the business, properties or
financial condition of the Borrowers and their
Subsidiaries as the Majority Banks may reasonably
request.
(f) Notice of Default or Litigation. Upon either
Borrower's obtaining knowledge thereof, it will give
written notice to the Agent and the Banks (i)
immediately, of the occurrence of an event or condition
consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action such
Borrower proposes to take with respect thereto, and
(ii) promptly, but in any event within 5 Business Days,
of the occurrence of any of the following with respect
to either of the Borrowers or any of its Subsidiaries:
(A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such
Borrower or any of its Subsidiaries which is likely to
have, or could have, a Material Adverse Effect on the
business, properties, assets, condition (financial or
otherwise) or prospects of such Borrower or any of its
Subsidiaries or of such Borrower to perform its
obligations hereunder or under any of the other Loan
Documents, (B) any levy of an attachment, execution or
other process against its assets having a value of
$1,000,000 or more, (C) the occurrence of an event or
condition which shall constitute a default or event of
default under any other agreement for borrowed money,
(D) any development in its business or affairs which
has resulted in, or which such Borrower reasonably
believes may result in, a Material Adverse Effect or
(E) the institution of any proceedings against, or the
receipt of notice of potential liability or
responsibility for violation, or alleged violation of
any federal, state or local law, rule or regulation,
including but not limited to, regulations promulgated
under the Resource Conservation and Recovery Act of
1976, 42 U.S.C. 6901 et seq., regulating the
generation, handling or disposal of any toxic or
hazardous waste or substance or the release into the
environment or storage of any toxic or hazardous waste
or substance, the violation of which could give rise to
a material liability on the business, assets,
properties condition (financial or otherwise) or
prospects of such Borrower or any of its Subsidiaries
(F) any notice or determination concerning the
<PAGE>43
imposition of any withdrawal liability by a multiemployer
Plan on the either of the Borrowers or any of its ERISA
Affiliates, the determination that a multiemployer Plan is,
or is expected to be, in reorganization within the meaning
of Title IV or ERISA, the termination of any Plan, and the
amount of liability incurred or which may be incurred in
connection with any such event.
6.02 Preservation of Existence and Franchises. The
Borrowers will do or cause to be done, all things necessary
to preserve and keep in full force and effect its existence,
rights, franchises and authority.
6.03 Books, Records and Inspections. Each Borrower
will keep, and will cause each of its Subsidiaries to keep,
complete and accurate books and records of its and each
Subsidiary's transactions in accordance with good accounting
practices on the basis of generally accepted accounting
principles applied on a consistent basis (including the
establishment and maintenance of appropriate reserves).
Each Borrower will permit, and will cause each of its
Subsidiaries to permit, on reasonable notice officers or
designated representatives of any Bank to visit and inspect
its and any of its Subsidiaries' books of account and
records and any of its and any Subsidiary's properties or
assets (in whomever's possession) and to discuss the
affairs, finances and accounts of such Borrower or any of
its Subsidiaries with, and be advised as to the same by its
or any of its Subsidiaries' officers, directors and
independent accountants.
6.04 Compliance with Law. Each Borrower will comply,
and will cause each of its Subsidiaries to comply, with all
applicable laws, rules, regulations and orders of, and all
applicable restrictions imposed by all applicable
governmental bodies, foreign or domestic, or authorities and
agencies thereof (including quasi-governmental authorities
and agencies), in respect of the conduct of its or any
Subsidiary's business and the ownership of its or any
Subsidiary's property (including all Environmental Laws and
controls), except where any such non-compliance would not
have a Material Adverse Effect on the business, assets,
properties or condition (financial or otherwise) of such
Borrower or any of its Subsidiaries or on the ability of
such Borrower or any of its Subsidiaries to perform its or
their respective obligations hereunder or under any other
Loan Document.
6.05 Payment of Taxes and Other Indebtedness. Each
Borrower will pay and discharge, and will cause its
Subsidiaries to pay and discharge, (i) all material taxes,
assessments and governmental charges or levies imposed upon
it or its Subsidiaries, or upon its or its Subsidiaries'
<PAGE>44
income or profits, or upon any of its properties, before
they shall become delinquent, (ii) all lawful claims
(including claims for labor, materials and supplies) which,
if unpaid, might give rise to a Lien or charge upon any of
its or any of its Subsidiaries' properties, and (iii) except
as prohibited hereunder, all of its or its Subsidiaries'
other Indebtedness as it shall become due; provided,
however, that neither of the Borrowers nor any of its
Subsidiaries shall be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is
being contested in good faith by appropriate proceedings and
as to which adequate reserves therefor have been established
in accordance with generally accepted accounting principles,
unless the failure to make any such payment shall give rise
to an immediate right to foreclosure on a lien securing such
amounts, in which case such Borrower or any such Subsidiary
shall make immediate payment of or shall otherwise satisfy
such tax, assessment, charge, levy, claim or Indebtedness
upon commencement of proceedings to foreclose on any such
lien.
6.06 Insurance. Each Borrower will at all times
maintain, and will cause its Subsidiaries to maintain in
full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty
insurance and business interruption insurance) in such
amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in
accordance with their customary practice.
6.07 Maintenance of Property. Each Borrower will
maintain and preserve, and will cause its Subsidiaries to
maintain and preserve, its and its Subsidiaries' properties
and equipment used or useful in its or its Subsidiaries'
business (in whomsoever's possession as they may be) in good
repair, working order and condition, normal wear and tear
excepted, and will make, or cause to be made, in such
properties and equipment from time to time all repairs,
renewals, replacements, extensions, additions, betterments
and improvements thereto as may be needed or proper, to the
extent and in the manner customary for companies in similar
businesses.
6.08 Performance of Obligations. Each Borrower will
perform in all material respects, and will cause its
Subsidiaries to perform in all material respects, all of its
and its Subsidiaries' obligations (including, except as may
be otherwise prohibited or contemplated hereunder, payment
of Indebtedness in accordance with its terms) under the
terms of all material agreements, indentures, mortgages,
security agreements or other debt instruments to which it or
any Subsidiary is a party or by which it or any Subsidiary
is bound.
<PAGE>45
6.09 ERISA. Each Borrower will (a) at all times, make
prompt payment of all contributions required under all
employee pension benefit plans ("Plans") and required to
meet the minimum funding standard set forth in ERISA with
respect to its Plans; (b) promptly upon request, furnish the
Agent and the Banks copies of each annual report/return
(Form 5500 Series), as well as all schedules and attachments
required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA, and the
regulations promulgated thereunder, in connection with each
of its Plans for each Plan Year; (c) notify the Agent
immediately of any fact, including, but not limited to, any
Reportable Event (as defined in ERISA) arising in connection
with any of its Plans, which might constitute grounds for
termination thereof by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to
administer such Plan, together with a statement, if
requested by the Agent, as to the reason therefor and the
action, if any, proposed to be taken with respect thereof;
and (d) furnish to the Agent, upon its request, such
additional information concerning any of its Plans as may be
reasonably requested. Neither of the Borrowers will, nor
will it permit any of its ERISA Affiliates to (I) terminate
a Plan if any such termination would give rise to or result
in any material liability, or (II) cause or permit to exist
any Termination Event under ERISA or other event or
condition which presents a material risk of termination at
the request of the PBGC.
6.10 Use of Proceeds. The proceeds of the Loans and
Bankers' Acceptances shall be made or issued for purposes of
financing general corporate purposes of the Borrowers.
6.11 Minimum Tangible Net Worth. The Borrowers will
maintain at all times Tangible Net Worth of at least
$272,000,000.00; provided, however, on January 31, 1996 and
on the last day of each fiscal year thereafter such required
amount shall be increased by an amount equal to 50% of the
net income of the Borrowers and their Subsidiaries, for the
fiscal year then ending, with such increases to be
cumulative. Such required amount shall not be decreased by
losses in any fiscal year.
6.12 Fixed Charge Coverage Ratio. The Borrowers will
maintain as of the end of each fiscal quarter (commencing
with the fiscal quarter ending July 31, 1995) a Fixed Charge
Coverage Ratio (computed for the four fiscal quarterly
periods then ending) of at least 1.80 to 1.0.
<PAGE>46
6.13 [intentionally left blank].
6.14 [intentionally left blank].
6.15 Funded Debt/Capital Ratio. The Borrowers shall
maintain a Funded Debt/Capital Ratio of no greater than .47
to 1.0 as of the end of each fiscal quarter in each fiscal
year (commencing with the fiscal quarter ending July 31,
1995).
ARTICLE VII
NEGATIVE COVENANTS
The Borrowers hereby covenant and agree that so long as
this Amended and Restated Loan Agreement is in effect and
until the Loans and Bankers' Acceptances Outstanding,
together with interest, fees and other obligations
hereunder, have been paid in full and the Commitments
hereunder shall have terminated:
7.01 Indebtedness. Neither of the Borrowers will, nor
will it permit any of its Subsidiaries to, contract, create,
incur, assume or permit to exist any Indebtedness except:
(a) Indebtedness arising under this Amended and
Restated Loan Agreement and the other Loan Documents;
(b) Indebtedness existing as of the Closing Date
as referenced in Section 5.09 without giving effect to
any subsequent extension, renewal or refinancing
thereof;
(c) Indebtedness incurred or arising under or in
connection with Permitted Liens (including for taxes
and assessments not yet delinquent and for permitted
purchase money lien obligations);
(d) Indebtedness in respect of current accounts
payable or accrued (other than for borrowed money or
purchase money obligations) and incurred in the
ordinary course of business, provided, that all such
liabilities, accounts and claims shall be paid when due
(or in conformity with customary trade terms);
(e) Indebtedness incurred in connection with
financing of seasonal working capital needs provided
that immediately prior to the incurrence of any such
indebtedness the Borrowers have utilized at least 85%
of the Commitments of the Banks hereunder;
<PAGE>47
(f) Indebtedness incurred in connection with
documentary and stand-by letters of credit issued on
the application of the Borrowers in the ordinary course
of business; and
(g) Indebtedness incurred to First American
National Bank in connection with financing of seasonal
working capital needs provided that the aggregate
amount of such indebtedness does not exceed
$30,000,000.
7.02 Liens. Neither of the Borrowers will, nor will it
permit any of its Subsidiaries to, contract, create, incur,
assume or permit to exist any Lien with respect to any of its or
any Subsidiary's property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or after
acquired except for Permitted Liens.
7.03 Guaranty Obligations. Neither of the Borrowers will,
nor will it permit any of its Subsidiaries to, enter into or
otherwise become or be liable in respect of any Guaranty Obliga-
tions (excluding specifically therefrom endorsements in the
ordinary course of business of negotiable instruments for deposit
or collection and excluding guarantees by either Borrower of its
Subsidiaries).
7.04 Nature of Business. Neither of the Borrowers will,
nor will it permit any of its Subsidiaries to, substantively
alter the character or conduct of its or any Subsidiary's
business from that conducted as of the Closing Date.
7.05 Consolidation, Merger, Sale or Purchase of Assets,
etc. Neither of the Borrowers will, nor will it permit any
Subsidiary to, dissolve, liquidate, or wind up its or any
Subsidiary's affairs, or enter into any transaction of merger or
consolidation, or enter into any receivables sale program, or
sell, transfer, lease or otherwise dispose of all or any part of
its or any Subsidiary's property or assets (other than in the
ordinary course of business for fair consideration), or purchase,
lease or otherwise acquire (in a single transaction or a series
of related transactions) all or any part of the property or
assets of any Person (other than purchases or other acquisitions
of inventory, leases, materials, property and equipment in the
ordinary course of business, except as otherwise limited or
prohibited herein) or to agree to do any of the foregoing at a
future time, except for (i) the sale or disposition of machinery
and equipment no longer useful in the conduct of its or any
Subsidiary's business, (ii) capital expenditures
(iii) investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 7.06 hereunder or
(iv) any acquisition of the properties or assets of any Person
provided the aggregate purchase price for such acquisition during
the period commencing on the Closing Date through and including
the Termination Date shall not exceed $25,000,000.00.
<PAGE>48
7.06 Advances, Investments and Loans. Neither of the
Borrowers will, nor will it permit any of its Subsidiaries to,
lend money or credit or make advances to any Person, or purchase
or acquire any stock, obligations or securities of, or any other
interest in, or make any capital contribution to any Person
except for Permitted Investments.
7.07 [intentionally left blank]
7.08 Prepayments of Indebtedness, etc. Neither of the
Borrowers will, nor will it permit any of its Subsidiaries to,
(i) after the issuance thereof, amend or modify (or permit the
amendment or modification of) any of the terms of any
subordinated or senior funded indebtedness for borrowed money to
the extent any such amendment or modification would be adverse to
the issuer thereof or to the interests of the Banks or (ii) make
(or give any notice with respect thereto) any voluntary or
optional payment or prepayment or redemption or acquisition for
value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before
due for the purpose of paying when due) or exchange of any other
Indebtedness for borrowed money.
7.09 Transactions with Affiliates. Neither of the
Borrowers will, nor will it permit any of its Subsidiaries to,
enter into any transaction or series of transactions, whether or
not in the ordinary course of business, with any Affiliate other
than on terms and conditions substantially as favorable to such
Borrower as would be obtainable by it or any Subsidiary in a
comparable arm's-length transaction with a Person other than an
Affiliate.
7.10 Fiscal Year. Neither of the Borrowers will, nor will
it permit any of its Subsidiaries to, change, or permit a change,
in its or any Subsidiary's fiscal year.
7.11 Sale and Leaseback. Neither of the Borrowers will,
nor will it permit any of its Subsidiaries to, enter into any
arrangement pursuant to which it or any Subsidiary will lease
back, as lessee, any property (real, personal or mixed, tangible
or intangible) previously owned by it or any Subsidiary and sold
or otherwise transferred or disposed of, directly or indirectly,
to the owner-lessor of such property unless any such sale and
leaseback transaction is completed within a six month period from
the later of the date of acquisition of the subject property or
the date such property is placed into service.
7.12 Articles and Bylaws. Neither of the Borrowers will,
nor will it permit any of its Subsidiaries to, amend, modify or
change in any material respect its or any Subsidiary's articles
of incorporation (corporate charter or other similar
organizational document) or bylaws without the prior written
consent of the Majority Banks, such consent not to be
unreasonably withheld.
<PAGE>49
7.13 Limitation on Further Negative Pledges. Except with
respect to prohibitions against other encumbrances on specific
property encumbered to secure particular Indebtedness otherwise
permitted hereunder (which Indebtedness relates solely to such
specific property and improvements and accretions thereto),
neither of the Borrowers will not enter into, assume or become
subject to any agreement prohibiting or otherwise restricting the
guaranty by it of any obligations, prohibiting or otherwise
restricting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if
security is given for some other obligation.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Borrowers shall (i) default in
the payment when due of any principal of any of the
Loans or of any reimbursement obligations arising from
payment obligations arising in connection with the
Bankers' Acceptances, or (ii) default, and such
default shall continue for five or more business days,
in the payment when due of any interest on the Loans,
or of any fees or other amounts owing hereunder, under
any of the other Loan Documents or in connection
herewith; or
(b) Representations. Any representation,
warranty or statement made or deemed to be made by
either of the Borrowers herein, in any of the other
Loan Documents in any statement or certificate
delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect
on the date as of which it was deemed to have been
made; or
(c) Covenants. Either of the Borrowers shall (i)
default in the due performance or observance of any
term, covenant or agreement contained in Sections 6.02,
6.11, 6.12 or 6.15 hereof and in Article VII hereof,
inclusive, or (ii) default in the due performance or
observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b)
or (c)(i) of this Section 8.01) contained in this
Amended and Restated Loan Agreement and such default
shall continue unremedied for a period of at least 30
days after notice thereof by the Agent or any Bank to
the Borrowers; or
<PAGE>50
(d) Other Loan Documents. Either of the
Borrowers shall default in the due performance or
observance of any term, covenant or agreement in any of
the other Loan Documents (subject to applicable grace
or cure periods, if any); or
(e) Bankruptcy, etc. Either of the Borrowers
shall commence a voluntary case concerning itself under
the Bankruptcy Code in Title 11 of the United States
Code (as amended, modified, succeeded or replaced, from
time to time, the "Bankruptcy Code"); or an involuntary
case is commenced against either of the Borrowers under
the Bankruptcy Code and the petition is not dismissed
within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of all or substantially
all of the property of either of the Borrowers; or
either of the Borrowers commences any other proceeding
under any reorganization, arrangement, adjustment of
the debt, relief of creditors, dissolution, insolvency
or similar law of any jurisdiction whether now or
hereafter in effect relating to such Borrower; or there
is commenced against either of the Borrowers any such
proceeding which remains undismissed for a period of 60
days; or either of the Borrowers is adjudicated
insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered;
or either of the Borrowers suffers appointment of any
custodian or the like for it or for any substantial
part of its property to continue unchanged or unstayed
for a period of 60 days; or either of the Borrowers
makes a general assignment for the benefit of
creditors; or any corporate action is taken by either
of the Borrowers for the purpose of effecting any of
the foregoing; or
(f) Defaults under Other Agreements. (i) Either
of the Borrowers shall (x) default in any payment
(beyond the applicable grace period with respect
thereto, if any) with respect to any Indebtedness in
excess of $250,000 or (y) default in the observance or
performance of any agreement or condition relating to
any such Indebtedness in excess of $250,000 or
contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of
which default or other event or condition is to cause,
or permit, the holder or holders of such Indebtedness
(or trustee or agent on behalf of such holders) to
cause (determined without regard to whether any notice
or lapse of time is required), any such Indebtedness to
become due prior to its stated maturity; or (ii) any
such Indebtedness in excess of $250,000 of either of
the Borrowers shall be declared due and payable, or
<PAGE>51
required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof;
or
(g) Judgments. One or more judgments or decrees
shall be entered against either of the Borrowers
involving a liability of $2,000,000 or more in any
instance (not paid or fully covered by insurance
provided by a carrier who has acknowledged coverage)
and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal
within 60 days from the entry thereof; or
(h) Ownership. (i) There shall occur a change of
control of either of the Borrowers.
(i) ERISA. (i) Either of the Borrowers or any
member of the Controlled Group shall fail to pay when
due an amount or amounts aggregating in excess of
$100,000 which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a
Plan or Plans which in the aggregate have unfunded
liabilities in excess of $1,000,000 (individually and
collectively, a "Material Plan") shall be filed under
Title IV of ERISA by such Borrower or any member of the
Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or there
shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the Controlled
Group to incur a current payment obligation in excess
of $500,000;
then, in any such event, and at any time thereafter, the
Agent, upon the written direction of the Majority Banks,
shall, by written notice to the Borrowers take any of the
following actions:
(i) Termination of Commitments. Declare the
Banks' obligations to make Loans and accept Bankers'
Acceptances terminated whereupon the Banks' Commitments
shall be immediately terminated and any commissions or
fees relating to the Commitments shall thereupon become
immediately due and payable without further notice of
any kind;
<PAGE>52
(ii) Acceleration of Loans. Declare the unpaid
principal of and any accrued interest in respect of all
the Notes to be due whereupon the same shall be
immediately due and payable without presentment,
demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers;
(iii) Enforcement of Rights. Enforce any and all
rights and interests created and existing under the
Loan Documents and all rights of set-off;
(iv) Cash Collateral. Direct the Borrowers to
pay (and the Borrowers agree that upon receipt of such
notice, or upon the occurrence of an Event of Default
under Section 8.01(e), it will immediately without
notice pay to the Agent such additional amounts of
cash, to be held in a cash collateral account as
additional security for the reimbursement obligations
which may thereafter arise on account of subsequent
payments under Bankers' Acceptances still outstanding,
in an amount equal to the then outstanding Bankers'
Acceptances Outstanding;
provided, however, that, notwithstanding the foregoing, if
an Event of Default specified in Section 8.01(e) shall
occur, then the Banks' Commitments shall automatically
terminate and the Notes and the Loans shall immediately
become due and payable without the giving of any notice or
other action by the Agent or the Banks.
ARTICLE IX
AGENCY PROVISIONS
9.01 Appointment. Each Bank hereby irrevocably
designates and appoints the Agent to act as its agent
specified herein and the other Loan Documents, and each such
Bank hereby irrevocably authorizes the Agent, as the agent
for such Bank to take such action on its behalf under the
provisions of this Amended and Restated Loan Agreement and
the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent
by the terms hereof and of the other Loan Documents,
together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary
elsewhere herein and in the other Loan Documents, the Agent
shall not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary
relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or
liabilities shall be read into this Amended and Restated
Loan Agreement or any of the other Loan Documents, or shall
<PAGE>53
otherwise exist against the Agent. The provisions of this
Section are solely for the benefit of the Agent and the
Banks and neither of the Borrowers shall have any rights as
a third party beneficiary of the provisions hereof. In
performing its functions and duties under this Amended and
Restated Loan Agreement and the other Loan Documents, the
Agent shall act solely as agent of the Banks and does not
assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for
either of the Borrowers.
9.02 Delegation of Duties. The Agent may execute any
of its respective duties hereunder or under the other Loan
Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care
except to the extent otherwise required by Section 9.03.
9.03 Exculpatory Provisions. Neither the Agent nor
any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (a) liable
for any action lawfully taken or omitted to be taken by them
or such Person under or in connection herewith or in
connection with any of the other Loan Documents (except for
their or such Person's own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the
Banks for any recitals, statements, representations or
warranties made by either of the Borrowers contained herein
or in any of the other Loan Documents or in any certificate,
report, statement or other document referred to or provided
for in, or received by the Agent under or in connection
herewith or in connection with the other Loan Documents, or
enforceability or sufficiency herefor of any of the other
Loan Documents, or for any failure of either of the
Borrowers to perform its obligations hereunder or
thereunder. The Agent shall not be responsible to any Bank
for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this
Amended and Restated Loan Agreement, or any of the other
Loan Documents or for any representations, warranties,
recitals or statements made herein or therein or made in any
written or oral statement or in any financial or in any
financial or other statements, instruments, reports,
certificates or any other documents in connection herewith
or therewith furnished or made by the Agent to the Banks or
by or on behalf of the Borrowers to the Agent or any Bank or
be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to
the use of the proceeds of the Loans or of the existence or
possible existence of any Default or Event of Default or to
<PAGE>54
inspect the properties, books or records of either of the
Borrowers.
9.04 Reliance on Communications. The Agent shall be
entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts
selected by the Agent . The Agent may deem and treat the
Banks as the owner of their respective interests hereunder
for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with
the Agent in accordance with this Amended and Restated Loan
Agreement. The Agent shall be fully justified in failing or
refusing to take any action under this Amended and Restated
Loan Agreement or under any of the other Loan Documents
unless it shall first receive such advice or concurrence of
the Majority Banks as it deem appropriate or it shall first
be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by them
by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder or under any of the
other Loan Documents in accordance with a request of the
Majority Banks (or to the extent specifically provided in
Section 10.06, with a request of all the Banks) and such
request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks (including their
successors and assigns).
9.05 Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Agent has received
notice from a Bank or either of the Borrowers referring to
the Loan Document, describing such Default or Event of
Default and stating that such notice is a "notice of
default." In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the
Banks. The Agent shall take such action with respect to
such Default or Event of Default as shall be directed by the
Majority Banks; provided that, unless and until the Agent
shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of
the Banks.
9.06 Non-Reliance on Agent and Other Banks. Each Bank
expressly acknowledges that neither the Agent nor any of its
<PAGE>55
respective officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations
or warranties to them and that no act by the Agent or any
respective affiliate thereof hereinafter taken, including
any review of the affairs of either of the Borrowers, shall
be deemed to constitute any representation or warranty by
the Agent to any Bank. Each Bank represents to the Agent
that it has, independently and without reliance upon the
Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets,
operations, property, financial and other conditions,
prospects and creditworthiness of the Borrowers and made its
own decision to make its Loans hereunder and enter into this
Amended and Restated Loan Agreement. Each Bank also
represents that it will, independently and without reliance
upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action
under this Amended and Restated Loan Agreement, and to make
such investigation as it deems necessary to inform itself as
to the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the
Borrowers. Except for notices, reports and other documents
expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning the business, operations, assets,
property, financial or other conditions, prospects or
creditworthiness of the Borrowers which may come into the
possession of the Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact or
affiliates.
9.07 Indemnification. The Banks agree to indemnify
the Agent in its capacity as such from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the
payment of the Obligations) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any
way relating to or arising out of this Amended and Restated
Loan Agreement or the other Loan Documents or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action
taken or omitted by the Agent under or in connection with
any of the foregoing; provided that no Bank shall be liable
for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. If any
indemnity furnished to the Agent for any purpose shall, in
<PAGE>56
the opinion of the Agent be insufficient or become impaired,
the Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this
Section shall survive the payment of the Obligations and all
other amounts payable hereunder and under the other Loan
Documents.
9.08 Agent in its Individual Capacity. The Agent and
its respective affiliates may make loans to, accept deposits
from and generally engage in any kind of business with
either of the Borrowers as though the Agent were not the
Agent hereunder. With respect to the Loans made hereunder
and Bankers' Acceptances issued hereunder, the Agent shall
have the same rights and powers under this Amended and
Restated Loan Agreement as any Bank and may exercise the
same as though it were not the Agent, and the terms "Bank"
and "Banks" shall include the Agent in its individual
capacity.
9.09 Successor Agents. The Agent may, at any time,
resign as Agent hereunder upon 30 days written notice to the
Banks, and be removed as Agent hereunder with or without
cause by the Majority Banks upon 30 days written notice to
the Agent. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed
by the Majority Banks, and shall have accepted such
appointment, within 30 days after the notice of resigning
Agent's resignation or the Majority Banks' notice of
removal, then the retiring Agent shall select a successor
Agent provided such successor Agent is a commercial bank
organized under the laws of the United States of America or
of any State thereof and has a combined capital and surplus
of at least $400,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent under this Amended
and Restated Loan Agreement and the other Loan Documents and
the provisions of this Section shall inure to its benefit as
to any actions taken or omitted to be taken by it while it
was Agent under this Amended and Restated Loan Agreement.
ARTICLE X
MISCELLANEOUS
10.01 Notices. Except as otherwise expressly provided
herein, all notices and other communications shall have been
duly given and shall be effective (a) when delivered, (b)
<PAGE>57
when transmitted via telecopy (or other facsimile device) to
the number set out below, (c) the day following the day on
which the same has been delivered prepaid to a reputable
national overnight air courier service, or (d) the third
Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case
to the respective parties at the address set forth opposite
such party's name on the signature pages hereto, or at such
other address as such party may specify by written notice to
the other parties hereto.
10.02 Right of Set-Off. In addition to any rights now
or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Bank is authorized
at any time and from time to time, without presentment,
demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or
owing by such Bank (including, without limitation, branches,
agencies or Affiliates of such Bank wherever located) to or
for the credit or the account of the Borrowers against
obligations and liabilities of the Borrowers to such Bank
hereunder, under the Notes, the other Loan Documents or
otherwise, irrespective of whether such Bank shall have made
any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or
unmatured, and any such set-off shall be deemed to have been
made immediately upon the occurrence of an Event of Default
even though such charge is made or entered on the books of
such Bank subsequent thereto. The Borrowers hereby agree
that any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 10.03(c) may
exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a
Bank hereunder.
10.03 Benefit of Agreement.
(a) Generally. This Amended and Restated Loan
Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided
that the Borrowers may not assign and transfer any of
their interests without prior written consent of the
Banks; provided further that the rights of each Bank to
transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set
forth in this Section 10.03.
(b) Assignments. Each Bank may assign all or a
portion of its rights and obligations hereunder
pursuant to an assignment agreement substantially in
<PAGE>58
the form of Exhibit I to one or more commercial banks,
financial institutions or "accredited investors" (as defined
in SEC Regulation D), provided that (i) any such assignment
shall be in a minimum aggregate amount of $5,000,000 of the
Commitment above such amount and (ii) the Borrowers and the
Agent shall consent to such assignment (which consent shall
not be unreasonably withheld). Any assignment hereunder
shall be effective upon delivery to the Agent of written
notice of the assignment and the satisfaction of the terms
and conditions relating thereto contained herein and the
payment to the Agent by the assignee of an assignment fee of
$2,500.00. The assigning Bank will give prompt notice to
the Agent and the Borrowers of any such assignment. Upon
the effectiveness of any such assignment (and after notice
to the Borrowers as provided herein), the assignee shall
become a "Bank" for all purposes of this Amended and
Restated Loan Agreement and the other Loan Documents and, to
the extent of such assignment, the assigning Bank shall be
relieved of its obligations hereunder to the extent of the
Loans and Commitment components being assigned. Along such
lines the Borrowers agree that upon notice of any such
assignment and surrender of their Note, they will promptly
provide to the assigning Bank and to the assignee separate
promissory notes in the amount of their respective interests
substantially in the form of the original Note (but with
notation thereon that it is given in substitution for and
replacement of the original Note or any replacement notes
thereof).
(c) Participations. Each Bank may sell, transfer
grant or assign, participations in all or any part of
such Bank's interests and obligations hereunder to any
bank or other institution, provided that (i) such
selling Bank shall remain a "Bank" for all purposes
under this Amended and Restated Loan Agreement (such
selling Bank's obligations under the Loan Documents
remaining unchanged) and the participant shall not
constitute a Bank hereunder, (ii) no such participant
shall have, or be granted, rights to approve any
amendment or waiver relating to this Amended and
Restated Loan Agreement or the other Loan Documents
except to the extent any such amendment or waiver would
(y) reduce the principal of or rate of interest on or
fees in respect of any Loans or Bankers' Acceptances in
which the participant is participating, (z) postpone
the date fixed for any payment of principal (including
the Termination Date of the Revolving Loans), interest
or fees in which the participant is participating or
and (iii) sub-participations by the participant (except
to an affiliate, parent company or affiliate of a
parent company of the participant) shall be prohibited.
In the case of any such participation, the participant
<PAGE>59
shall not have any rights under this Amended and Restated
Loan Agreement or the other Loan Documents (the
participant's rights against the selling Bank in respect of
such participation to be those set forth in the
participation agreement with such Bank creating such
participation) and all amounts payable by the Borrowers
hereunder shall be determined as if such Bank had not sold
such participation.
10.04 No Waiver; Remedies Cumulative. No failure or
delay on the part of the Agent or any Bank in exercising any
right, power or privilege hereunder or under any other Loan
Document and no course of dealing between the Borrowers and
the Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder or under any other Loan Document
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which
the Agent or any Bank would otherwise have. No notice to or
demand on the Borrowers in any case shall entitle the
Borrowers to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the
rights of the Agent or the Banks to any other or further
action in any circumstances without notice or demand.
10.05 Payment of Expenses, etc. The Borrowers agree
to: (a) pay all reasonable out-of-pocket costs and expenses
of (i) the Agent in connection with the syndication of this
Amended and Restated Loan Agreement, the due diligence
associated with this transaction and the negotiation,
preparation, execution and delivery and administration of
this Amended and Restated Loan Agreement and the other Loan
Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees
and expenses of special counsel to the Agent) and any
amendment, waiver or consent relating hereto and thereto,
including, but not limited to, any such amendments, waivers
or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by
the Borrowers under this Amended and Restated Loan Agreement
and (ii) the Banks in connection with enforcement of the
Loan Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees
and disbursements of counsel for the Agent and each of the
Banks including allocated costs to internal legal counsel);
(b) pay and hold each of the Banks harmless from and against
any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the
Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such
taxes; and (c) indemnify each Bank, its officers, directors,
<PAGE>60
employees, representatives and agents from and hold each of
them harmless against any and all losses, liabilities,
claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or
by reason of, any investigation, litigation or other
proceeding (whether or not any Bank is a party thereto)
related to the entering into and/or performance of any Loan
Document or the use of proceeds of any Loans or Bankers'
Acceptances hereunder or the consummation of any other
transactions contemplated in any Loan Document, including,
without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the
extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
10.06 Amendments, Waivers and Consents. Neither this
Amended and Restated Loan Agreement nor any other Loan
Document nor any of the terms hereof or thereof may be
amended, changed, waived, discharged or terminated unless
such amendment, change, waiver, discharge or termination is
in writing signed by the Majority Banks and the Borrowers,
provided that no such amendment, change, waiver, discharge
or termination shall, without the consent of each Bank, (a)
extend the scheduled maturities (including the final
maturity and any mandatory prepayments) of any Loan,
Bankers' Acceptances outstanding or any portion thereof, or
reduce the rate or extend the time of payment of interest
thereon or fees hereunder or reduce the principal amount
thereof, or increase the Commitment of any Bank over the
amount thereof in effect, (b) amend, modify or waive any
provision of this Section, (c) reduce any percentage
specified in, or otherwise modify, the definition of
Majority Banks, (d) consent to the assignment or transfer by
the Borrowers of any of their rights and obligations under
(or in respect of) this Amended and Restated Loan Agreement
or (e) modify the definition of "Termination Date". No
provision of Article IX may be amended without the consent
of the Agent.
10.07 Counterparts. This Amended and Restated Loan
Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of
this Amended and Restated Loan Agreement to produce or
account for more than one such counterpart.
10.08 Headings. The headings of the sections and
subsections hereof are provided for convenience only and
shall not in any way affect the meaning or construction of
any provision of this Amended and Restated Loan Agreement.
<PAGE>61
10.09 Survival. All indemnities set forth herein,
including, without limitation, in Section 3.04 or 10.05,
shall survive the execution and delivery of this Amended and
Restated Loan Agreement, the making of the Loans, the
issuance of the Bankers' Acceptances, the repayment of the
Loans, the Bankers' Acceptances Outstanding and other
obligations of the Borrowers hereunder and the termination
of the Commitment hereunder.
10.10 Calculations; Computations.
(a) The financial statements furnished to the
Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting
principles applied on a consistent basis for the
periods involved.
(b) All computations of interest and fees
hereunder shall be made on the basis of actual number
of days elapsed over a year of 360 days, except as
otherwise provided herein.
(c) In the event any payment of principal,
interest, fees or other amount is due on a day which is
not a Business Day, the payment shall be extended to
the next succeeding Business Day together with, in the
case of a payment of principal, interest thereon to the
date of payment (except in the case of Eurodollar
Loans, if the next succeeding Business Day is in a
different calendar month, then on the next preceding
Business Day).
10.11 Governing Law; Submission to Jurisdiction;
Venue.
(a) THIS AMENDED AND RESTATED LOAN AGREEMENT AND
THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any
legal action or proceeding with respect to this Amended
and Restated Loan Agreement or any other Loan Document
may be brought in the courts of the State of North
Carolina in Mecklenburg County, or of the United States
for the Western District of North Carolina, and, by
execution and delivery of this Amended and Restated
Loan Agreement, each of the Borrowers hereby
irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the
jurisdiction of such courts. Each of the Borrowers
further irrevocably consents to the service of process
out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to
<PAGE>62
the Borrowers at their addresses for notices set forth
beneath their signatures, such service to become effective
30 days after such mailing. Nothing herein shall affect the
right of the Banks to serve process in any other manner
permitted by law or to commence legal proceedings or to
otherwise proceed against the Borrowers in any other
jurisdiction.
(b) Each of the Borrowers hereby irrevocably
waives any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with
this Amended and Restated Loan Agreement or any other
Loan Document brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) EACH OF THE BORROWERS AND EACH BANK HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AMENDED AND RESTATED LOAN AGREEMENT,
ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
10.12 Severability. If any provision of any of the
Loan Documents is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the
illegal, invalid or unenforceable provisions.
10.13 Entirety. This Amended and Restated Loan
Agreement together with the other Loan Documents represent
the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or
correspondence relating to the Loan Documents or the
transactions contemplated herein and therein.
10.14 Survival. All representatives and warranties
made by the each of the Borrowers herein shall survive
delivery of the Notes and the making of the Loans and the
issuance of the Bankers' Acceptances hereunder.
10.15 Pro Rata, Sharing. Each Bank agrees that, if it
should receive any amount hereunder (whether voluntary
payment, by realization upon security, by the exercise of
the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Loan
Documents or otherwise) which is applicable to the payment
of the principal of, or interest or fees on, the Loans or in
respect of Bankers' Acceptances, of a sum which with respect
<PAGE>63
to the related sum or sums received by the other Banks is in
a greater proportion than the total of such obligation than
owned and due to such Bank bears to the total of such
obligation prior to such receipt, then such Bank receiving
such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the
obligations of the Borrowers to such Banks in such amount as
will result in a proportional participation by all of the
Banks in such amount, provided that if all or any portion of
such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without
interest.
<PAGE>64<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has
caused a counterpart of this Amended and Restated Loan
Agreement to be duly executed and delivered as of the date
first above written.
DOLLAR GENERAL CORPORATION
ATTEST:
By______________________ By__________________________________
__________ Secretary
Title_______________________________
(Corporate Seal)
Address:
DOLLAR GENERAL CORPORATION
104 Woodmont Boulevard
Suite 500
Nashville, Tennessee 37205
Attn: C. Kent Garner
Telephone: (615) 783-2014
Facsimile: (615) 386-9936
DOLGENCORP, INC.
ATTEST:
By______________________ By__________________________________
__________ Secretary
Title_______________________________
(Corporate Seal)
Address:
DOLGENCORP, INC.
104 Woodmont Boulevard
Suite 500
Nashville, Tennessee 37205
Attn: C. Kent Garner
Telephone: (615) 783-2014
Facsimile: (615) 386-9936
<PAGE>65<PAGE>
NATIONSBANK, N.A. (CAROLINAS)
Individually and as Agent
Committed Amount: By /S/: Steve L. Dalton
$50,000,000
Title Vice President
Committed Percentage:
29.411764706% Address:
NationsBank, N.A. (Carolinas)
NationsBank Plaza
Charlotte, North Carolina 28255
Attn: Tracy Crotts
Telephone: (704) 386-9368
Facsimile: (704) 386-9923
Address as Agent:
NationsBank Corporation
NationsBank Plaza M-5
Nashville, Tennessee 37239
Attn: Steve L. Dalton
Telephone: (615) 749-4151
Facsimile: (615) 749-4112
<PAGE>66<PAGE>
THIRD NATIONAL BANK IN NASHVILLE
Committed Amount: By /s/: Robert W. Meyer
$30,000,000 Title First Vice President
Committed Percentage:
17.647058824%
Address for Payments and Notices:
P.O. Box 305110
Nashville, Tennessee 37230-5110
Attn: Robert W. Meyer
Telephone: (615) 748-4396
Facsimile: (615) 259-4119
Address for Notices Only:
Third National Bank in Nashville
P.O. Box 305110
Nashville, Tennessee 37230-5110
Attn: Robert W. Meyer
Telephone: (615) 748-4396
Facsimile: (615) 259-4119
<PAGE>67<PAGE>
BARNETT BANK OF BROWARD COUNTY, N.A.
Committed Amount: By \s\: Lawrence Katz
$25,000,000 Title Vice President
Committed Percentage:
14.705882353%
Address for Payments and Notices:
Credit Administration
491 Northwest 40th Ave.
Plantation, Florida 33317
Attn: Lawrence Katz
Telephone: (305) 797-0789
Facsimile: (305) 797-0727
Address for Notices Only:
(A) 50 North Laura St. 17th Floor
P.O. Box 40789
Jacksonville, Florida 32202
Attn: Bert Davis
Telephone: (904) 791-5081
Facsimile: (904) 791-7623
(B) 1 East Broward Blvd.
Ft. Lauderdale, FL. 33301-1804
Attn: Gary Fuccillo
Telephone: (305) 765-1570
Facsimile: (305) 765-1661
<PAGE>68<PAGE>
WACHOVIA BANK OF GEORGIA, N.A.
Committed Amount: By \s\: F. Alan Smith
$25,000,000 Title Vice President
Committed Percentage:
14.705882353%
Address for Payments and Notices:
P.O. Box 4148
Mail Code 3940
Atlanta, Georgia 30302
Attn: Margie Mote
Telephone: (404) 332-1044
Facsimile: (404) 332-5016
Address for Notices Only:
Georgia Corporate MC3940
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Alan Smith
Telephone: (404) 332-1044
Facsimile: (404) 332-5016
<PAGE>69<PAGE>
BANK OF AMERICA ILLINOIS
Committed Amount: By /s/: Michael McKenney
$20,000,000 Title Vice President
Committed Percentage:
11.764705882%
Address for Payments and Notices:
231 South LaSalle Street
Mail Code 200-9
Chicago, Illinois 60697
Attn: Fred Fischer
Telephone: (312) 828-6674
Facsimile: (312) 974-9626
Address for Notices Only:
950 E. Paces Ferry Road
#3375
Atlanta, Georgia 30326
Attn: Michael McKenney
Telephone: (404) 262-6107
Facsimile: (404) 364-3303
<PAGE>70<PAGE>
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
Committed Amount: By /s/: Shusai Nagai
$20,000,000 Title General Manager
Committed Percentage:
11.764705882%
Address for Payments and Notices:
The Industrial Bank of Japan,
Limited, Atlanta Agency
One Ninety One Peachtree Tower
Suite 3600
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: Business Operations Department
Telephone: (404) 524-8770
Facsimile: (404) 577-6818
Address for credit matters:
One Ninety One Peachtree Tower,
Suite 3600
191 Peachtree St, N.E.
Atlanta, Georgia 30303-1757
Attn: Jackie Brunetto
Telephone: (404) 420-3325
Facsimile: (404) 524-8509
<PAGE>71<PAGE>
Exhibits to Amended and Restated Loan Agreement
A. Permitted Liens
B. Promissory Note
C. Form of Bid Rate Loan Request
D. Opinion of Counsel
E. Schedule of Other Debt
F. Material Litigation
G. Borrowers' List of Subsidiaries
H. Officer's Certificate
I. Form of Assignment and Acceptance<PAGE>
Ex hibit B
PROMISSORY NOTE
$_______________ JUNE ____, 1995
For Value received, DOLLAR GENERAL CORPORATION, a Kentucky
corporation and DOLGENCORP, INC., a Kentucky corporation (the
"Borrowers"), jointly and severally promise to pay to the order of
__________________ (the "Bank"), the unpaid principal amount of each
Revolving Loan made by the Bank to the Borrower pursuant to the Loan
Agreement (hereinafter defined) on the Termination Date provided for
in the Loan Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Revolving Loan on the dates and
at the rate or rates provided for in the Loan Agreement. All such
payments of principal and interest shall be made in U.S. dollars
immediately available funds at the offices of NationsBank, N.A.
(Carolinas) in Charlotte, North Carolina.
All Revolving Loans made by the Bank, the respective maturities
thereof and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, appropriate notations
to evidence the foregoing information with respect to each such
Revolving Loan then outstanding shall be endorsed by the Bank on the
schedule attached to and made a part hereof; provided that the failure
of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrowers hereunder or under the Loan
Agreement.
This promissory note is one of the Revolving Notes referred to in
the Loan Agreement, dated as of June ____, 1995, among the Borrowers,
the banks listed on the signature pages thereof, and NationsBank, N.A.
(Carolinas), as Agent (as the same may be amended from time to time,
the "Loan Agreement"). Terms defined in the Loan Agreement are used
herein with the same meanings. Reference is made to the Loan
Agreement for provisions for the payment hereof and the acceleration
of the maturity hereof. All of the terms, conditions and covenants of
the Loan Agreement are hereby expressly made a part of this promissory
note by reference in the same manner and with the same effect as if
set forth herein at length and any holder of the promissory note is
entitled to the benefits of and remedies provided in the Loan
Agreement.
DOLLAR GENERAL CORPORATION
ATTEST:
By:__________________________ By:__________________________
Title:_______________________ Title:_______________________
(Corporate Seal)
DOLGENCORP, INC.
ATTEST:
By:__________________________ By:__________________________
Title:_______________________ Title:_______________________
(Corporate Seal)
