FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended April 3, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-6905
RUDDICK CORPORATION
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0905940
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2000 Two First Union Center
Charlotte, North Carolina 28282
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (704) 372-5404
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
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
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Outstanding Shares
As of April 29, 1994 Class
23,251,101 shares Common Stock
This issuer also had outstanding, as of April 29, 1994, 38,679
shares of its Non-cumulative, Voting $.56 Convertible Preference
Stock, each of which is convertible into four shares of Common
Stock.
<PAGE>
RUDDICK CORPORATION
INDEX
PAGE NO.
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED CONDENSED BALANCE SHEETS -
APRIL 3, 1994 AND OCTOBER 3, 1993 2
CONSOLIDATED CONDENSED STATEMENTS OF
INCOME - THREE MONTHS AND SIX MONTHS
ENDED APRIL 3, 1994 AND MARCH 28, 1993 3
CONSOLIDATED CONDENSED STATEMENTS OF
CASH FLOWS - SIX MONTHS ENDED
APRIL 3, 1994 AND MARCH 28, 1993 4
NOTES TO CONSOLIDATED CONDENSED FINANCIAL
STATEMENTS 5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF
OPERATIONS 6-9
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE
OF SECURITY HOLDERS 10
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 11
SIGNATURES 11
<PAGE>
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RUDDICK CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(in thousands)
April 3, October 3,
ASSETS 1994 1993
(Unaudited) (Unaudited)
CURRENT ASSETS:
Cash and Temporary Cash Investments $ 5,713 $ 12,392
Accounts Receivable, Net 63,190 58,757
Inventories 176,660 171,142
Other 9,599 15,327
Total Current Assets 255,162 257,618
PROPERTY, NET 284,525 273,683
INVESTMENTS AND OTHER ASSETS 59,496 55,514
TOTAL $ 599,183 $ 586,815
LIABILITIES
CURRENT LIABILITIES:
Notes Payable $ 4,103 $ 2,918
Current Portion of Long-Term Debt 5,988 5,989
Accounts Payable 103,720 104,518
Income Taxes Payable 566 3,740
Other Accrued Liabilities 40,340 45,157
Total Current Liabilities 154,717 162,322
LONG-TERM DEBT AND DEFERRED LIABILITIES 160,295 149,753
SHAREHOLDERS' EQUITY:
Capital Stock
Preference 389 486
Common 61,739 62,523
Retained Earnings 223,845 213,713
Cumulative Translation Adjustments (1,802) (1,982)
Shareholders' Equity 284,171 274,740
Total $ 599,183 $ 586,815
<Page 2>
RUDDICK CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands, except share and per share data)
THREE MONTHS ENDED
APRIL 3, MARCH 28,
1994 1993
(Unaudited)
(Unaudited)
NET SALES
American & Efird $ 67,142 $ 65,632
Harris Teeter 385,880 338,575
Jordan Graphics 12,860 13,489
Total 465,882 417,696
OPERATING PROFIT
American & Efird 5,801 7,517
Harris Teeter 9,266 8,232
Jordan Graphics (91) 586
Ruddick Investment 331 86
Total 15,307 16,421
OTHER COSTS AND DEDUCTIONS
Interest expense, net 2,044 2,088
Other expense 2,154 1,271
Total 4,198 3,359
Income Before Taxes and Cumulative
Effect of Accounting Change 11,109 13,062
Taxes 3,665 5,048
Income Before Cumulative Effect of
Accounting Change 7,444 8,014
Cumulative Effect of Accounting
Change - -
NET INCOME $ 7,444 $ 8,014
AVERAGE NUMBER OF SHARES OF COMMON
STOCK AND COMMON STOCK EQUIVALENTS
OUTSTANDING:
Primary 23,686,960 23,908,908
Fully Diluted 23,686,962 23,909,050
NET INCOME PER SHARE-PRIMARY
AND FULLY DILUTED:
Income Before Cumulative Effect
of Accounting Change $0.32 $0.33
Cumulative Effect of Accounting Change - -
NET INCOME PER SHARE $0.32 $0.33
DIVIDENDS DECLARED PER SHARE:
Common $0.07 $0.06
$.56 Convertible Preference $0.14 $0.14
RUDDICK CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands, except share and per share data)
SIX MONTHS ENDED
APRIL 3, MARCH 28,
1994 1993
(Unaudited) (Unaudited)
NET SALES
American & Efird $ 130,862 $ 127,637
Harris Teeter 773,871 684,872
Jordan Graphics 25,715 27,602
Total 930,448 840,111
OPERATING PROFIT
American & Efird 11,718 14,863
Harris Teeter 17,027 16,365
Jordan Graphics (335) 1,459
Ruddick Investment 451 264
Total 28,861 32,951
OTHER COSTS AND DEDUCTIONS
Interest expense, net 4,116 4,162
Other expense 3,256 2,673
Total 7,372 6,835
Income Before Taxes and Cumulative
Effect of Accounting Change 21,489 26,116
Taxes 7,780 10,093
Income Before Cumulative Effect of
Accounting Change 13,709 16,023
Cumulative Effect of Accounting
Change - 3,869
NET INCOME $ 13,709 $ 19,892
AVERAGE NUMBER OF SHARES OF COMMON
STOCK AND COMMON STOCK EQUIVALENTS
OUTSTANDING:
Primary 23,720,187 23,860,090
Fully Diluted 23,720,445 23,902,082
NET INCOME PER SHARE-PRIMARY
AND FULLY DILUTED:
Income Before Cumulative Effect
of Accounting Change $0.58 $0.67
Cumulative Effect of Accounting Change - $0.16
NET INCOME PER SHARE $0.58 $0.83
DIVIDENDS DECLARED PER SHARE:
Common $0.14 $0.12
$.56 Convertible Preference $0.28 $0.28
<Page 3>
RUDDICK CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(in thousands)
SIX MONTHS ENDED
APRIL 3 MARCH 28,
1994 1993
(Unaudited) (Unaudited)
CASH FLOW FROM INCOME $ 39,237 $ 32,568
Decrease (Increase) in Current
Assets (3,898) (11,200)
Increase (Decrease) in Current
Liabilities (7,931) 3,122
NET CASH PROVIDED BY OPERATING
ACTIVITIES 27,408 24,490
INVESTING ACTIVITIES
Purchase of Assets (35,761) (21,620)
Cash Proceeds from Sale of Assets 2,492 2,061
Other, Net 313 (180)
NET CASH USED IN INVESTING ACTIVITIES (32,956) (19,739)
FINANCING ACTIVITIES
Proceeds (Repayments) of Long-Term
Borrowings 10,800 (2,700)
Payment of Principal on Long-Term
Debt (2,888) (4,773)
Dividends (3,253) (2,802)
Other, Net (5,790) (149)
NET CASH USED IN
FINANCING ACTIVITIES (1,131) (10,424)
INCREASE (DECREASE) IN BALANCE SHEET
CASH (6,679) (5,673)
BALANCE SHEET CASH AT BEGINNING OF
PERIOD 12,392 20,427
BALANCE SHEET CASH AT END OF
PERIOD $ 5,713 $ 14,754
SUPPLEMENTAL DISCLOSURES OF
CASH FLOW INFORMATION
Cash Paid During the Year for:
Interest $ 3,897 $ 4,827
Income Taxes 8,442 13,283
<Page 4>
RUDDICK CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
IN THE OPINION OF MANAGEMENT, THE INFORMATION FURNISHED REFLECTS
ALL ADJUSTMENTS (CONSISTING ONLY OF NORMAL RECURRING ACCRUALS)
NECESSARY TO PRESENT FAIRLY THE RESULTS FOR THE INTERIM PERIODS
PRESENTED.
THE COMPANY HAS CALLED ITS NON-CUMULATIVE, VOTING $.56
CONVERTIBLE PREFERENCE STOCK FOR REDEMPTION ON MAY 31, 1994, AT A
REDEMPTION PRICE OF $10.10 PER SHARE ($10.00 REDEMPTION PRICE
PLUS $.10 ACCRUED DIVIDEND FROM APRIL 1, 1994 THROUGH THE DATE OF
REDEMPTION). CURRENTLY, EACH SHARE OF THE PREFERENCE STOCK IS
CONVERTIBLE INTO FOUR SHARES OF COMMON STOCK OF THE COMPANY.
[ASHARES OF PREFERENCE STOCK NOT SO CONVERTED INTO SHARES OF
COMMON STOCK BY THE CLOSE OF BUSINESS ON MAY 23, 1994, WILL BE
REDEEMED AS DESCRIBED ABOVE.
<<Page5>
ITEM 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
RESULTS OF OPERATIONS
The following table shows net sales and operating profit for
each of Ruddick Corporation's subsidiaries for the quarters and
six months ended April 3, 1994 and March 28, 1993:
(In Thousands) SIX
QUARTER ENDED MONTHS ENDED
April 3, March 28, April 3, March 28,
1994 1993 1994 1993
Net Sales
American & Efird $ 67,142 $ 65,632 $130,862 $127,637
Harris Teeter 385,880 338,575 773,871 684,872
Jordan Graphics 12,860 13,489 25,715 27,602
Total $465,882 $417,696 $930,448 $840,111
Operating Profit
American & Efird $ 5,801 $ 7,517 $ 11,718 $ 14,863
Harris Teeter 9,266 8,232 17,027 16,365
Jordan Graphics (91) 586 (335) 1,459
Ruddick Investment 331 86 451 264
Total $ 15,307 $ 16,421 $ 28,861 $ 32,951
FOR THE THREE MONTHS ENDED APRIL 3, 1994 AND MARCH 28, 1993
Consolidated sales of $466 million in the second quarter of
fiscal 1994 increased 11% over the $418 million reported for the
comparable period last year. Total operating profit of $15.3
million decreased 6.8% from last year. Net income after taxes of
$7.4 million decreased 7% from the $8.0 million last year.
Fully diluted and primary earnings per share were $.32 in
the second quarter of fiscal 1994 and compares to $.33 for the
comparable period last year.
In the second quarter of fiscal 1994, American & Efird sales
of $67.1 million increased 2% over the $65.6 million reported for
the comparable period last year. Thread sales increased 3% over
last year, although there was considerable weakness in sales to
jeans, fleece and underwear manufacturers. Continued strength in
the home furnishings, automotive and consumer products accounted
for the increase in sales. Operating profit of $5.8 million
decreased 22.8% from the $7.5 million reported for the comparable
period last year. Operating profit was adversely affected by
lower profit margins due to price competition in several markets,
less favorable product mix and lower manufacturing efficiencies
due to operating disruptions in primarily two
<PAGE>
plants associated with modernization programs. Results are expected to
improve over the remainder of the year.
Harris Teeter sales in the second fiscal quarter of $385.9
million increased 14% over the $338.6 million reported for the
same period last year. Net sales for stores in operation during
both periods increased 6.2%. The increase in sales was enhanced
by aggressive feature plans and increased advertising. Operating
profit of $9.3 million increased 12.6% over the $8.2 million
reported for the comparable period last year. In other than the
Columbia, South Carolina and Atlanta, Georgia markets, sales and
profits were well ahead of last year. In Columbia, greater costs
of training employees and inadequate sales resulted in an
operating loss. The new store in the Atlanta market, opened in
the first fiscal quarter, has generated impressive sales, but
expenses have exceeded favorable levels. Management attention
is focused on achieving improvements in these two markets by
implementing marketing plans to increase sales in Columbia and
reducing operating costs in Atlanta. Operating results are
expected to improve in these markets over the next six months.
No new stores were opened in the quarter. There were 141 stores
in operation at April 3, 1994 compared to 133 in operation at
March 28, 1993.
Jordan Graphics sales of $12.9 million in the second quarter
of fiscal 1994 declined 5% from the comparable period last year.
Sales declined in all product lines except for commercial
printing. An operating loss of $91 thousand was largely the
result of declining sales and underutilized capacity. Some paper
price increases became effective during the quarter, and due to
the competitive environment, Jordan was unable to offset these
through product price increases. Margins remain under pressure
due to the continuing over-capacity in the industry. Significant
efforts are being expended to increase sales and improve
operating efficiencies.
Ruddick Investment reported an operating profit of $331
thousand in the quarter ended April 3, 1994, an increase from the
$86 thousand reported for the comparable quarter last year. This
higher operating profit was largely from additional rental income
from the Morrocroft Village shopping center in Charlotte, North
Carolina.
FOR THE SIX MONTHS ENDED APRIL 3, 1994 AND MARCH 28, 1993
Consolidated sales for the six months ended April 3, 1994 of
$930 million increased 11% over the $840 million reported for the
first six months in fiscal 1993, with American & Efird and Harris
Teeter reporting increases and Jordan Graphics reporting a
decrease. Operating profit of $28.9 million was down 12.4% from
the $33.0 million reported for the comparable period last year,
with Harris Teeter and Ruddick Investment Company reporting
increases and American & Efird and Jordan Graphics reporting
decreases. Net income of $13.7 million was down from $16.0
million as reported last year before adjustment for the cumulative effect
of a change in accounting principle. Net income for the six
months ended March 28, 1993, has been restated to $19.9 million
to reflect the adoption last year of Statement of Financial
Accounting Standards No. 109 "Accounting for Income Taxes."
Fully diluted per share
<PAGE>
earnings for the first six months this year were $.58. For the
comparable period last year, fully diluted per share earnings were
$.83 after reflecting a $.16 favorable effect of the accounting change.
American & Efird sales of $130.9 million for the first six
months this year increased 2.5% over the comparable period last
year. This increase was the net result of weakness in sales to
manufacturers of jeans, fleece and underwear, which weakness was
more than offset by increased sales in home furnishings,
automotive and consumer products. Operating profits were
reduced, primarily the result of lower profit margins reflecting
price competition, a less favorable product mix, unfavorable
manufacturing variances due to lower volume in several plants
during the first fiscal quarter and costs of some operating
disruptions associated with modernization programs.
Harris Teeter sales of $773.9 million for the six months
ended April 3, 1994 were 13% higher than for the same period last
year, primarily the result of additional volume generated by
increased feature programs and effective advertising.
Operating profit this year was up 4% from the comparable period
last year, although the Columbia, South Carolina and Atlanta,
Georgia markets continued to adversely affect operating profit.
However, it is anticipated that operating results will improve in
these two markets over the next six months.
Jordan Graphics sales of $25.7 million for the six months
ended April 3, 1994 decreased 6.8% from the comparable period
last year. Jordan Graphics reported an operating loss of $335
thousand for the six months ended April 3, 1994, compared to an
operating profit of $1.5 million last year. Sales were lower in
all product lines except for commercial printing. The reduction
in operating profit was the result of lower sales, and
underutilization of manufacturing capacity. Significant efforts
are underway to increase sales and improve operating
efficiencies.
Ruddick Investment had no significant sales of assets during
the six months ended April 3, 1994, and the increased operating
profit was primarily the result of increased rental income from
Morrocroft Village shopping center.
Following the October 3, 1993 fiscal year end, the Company
adopted a broadly-based Corporate Owned Life Insurance (COLI)
program. While this program had little effect on net income for
the six months ended April 3, 1994, its adoption increased
administrative expense and reduced the provision for income
taxes.
FINANCIAL CONDITION, CAPITAL RESOURCES AND LIQUIDITY
Ruddick has an overall financial goal of earning a 15%
return on beginning shareholders' equity. At the same time,
Ruddick seeks to limit long-term debt so as to constitute no more
than 40% of capital employed. As of April 3, 1994, this
percentage was 28.2% and compares to 27.5% at October 3, 1993.
<PAGE>
The Company's principal source of liquidity has been
revenues from operations. The Company also has had the ability
to borrow up to an aggregate of $45 million under three
established revolving bank loans. The maximum amount outstanding
under these credit facilities during the quarter ended April 3,
1994 was $45 million, and $37.2 million was outstanding at
quarter end. Currently, the Company renegotiated its revolving
credit facility with the same three banks, increasing the
aggregate amount of the facility from $45 million to $60 million
and extending the term. Two of the banks executed the
renegotiated facility agreements at the end of the quarter and
the third bank, subsequently. Borrowings and repayments under
these facilities are of the same nature as short- term credit
lines; however, due to the nature and terms of the agreements
allowing up to seven years for repayment, all borrowings
under these facilities are classified as long-term debt. The
Company also has the ability to borrow up to $20 million in
aggregate under short-term credit lines with two banks, and there
was no amount outstanding on those lines at quarter end. A
portion of the cash generated during the quarter was used to
reduce the revolving credit facility by $7.8 million.
Working capital of $100.4 million at April 3, 1994,
increased $5.1 million from October 3, 1993, largely the result
of increases in inventories and accounts receivable and
reductions in accrued liabilities. The current ratio was 1.6 at
April 3, 1994, and 1.6 at October 3, 1993.
Covenants in certain of the Company's long-term debt
agreements limit the total indebtedness which the Company may
incur. With the new $60 million revolving credit facility in
place, management believes its liquidity to be adequate in the
near
term.
<PAGE>
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Shareholders of Ruddick Corporation
was held on February 3, 1994 (the "Annual Meeting").
Proxies for the Annual Meeting were solicited pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as
amended. The shareholders voted upon the following matters at
the Annual Meeting:
(A) ELECTION OF DIRECTORS
The shareholders elected three directors for terms
endingin 1997. In addition, the following directors currently
areserving for terms to expire in 1995 or 1996, as indicated:
EdwinB. Borden, Jr. (1996), R. Stuart Dickson (1996), Hugh L.
McColl,Jr. (1996), John W. Copeland (1995), Alan T. Dickson
(1995), Beverly F. Dolan (1995) and Roddey Dowd, Sr. (1995).
There was no solicitation in opposition to management's nominees
as listed in the proxy statement, and all such nominees were
elected. The following information is furnished with respect to
each director elected at the meeting:
Shares
Director Elected Shares Voted Withholding Broker
at Annual Meeting for Election Authority Non-votes
Thomas M. Belk 19,559,869 259,182 2,320,662
James E.S. Hynes 19,594,749 224,302 2,320,662
E. C. Wall, Jr. 19,598,953 220,098 2,320,662
(B) APPROVAL OF 1993 INCENTIVE STOCK OPTION AND STOCK
APPRECIATION RIGHTS PLAN ("1993 STOCK OPTION PLAN")
The shareholders approved the Corporation's 1993 Stock
Option Plan at the Annual Meeting. The following information is
furnished with respect to the approval of this matter:
Shares Shares
Voted Voted Shares Broker
for Against Abstaining Non-votes
18,804,272 724,182 290,597 2,320,662
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Amended and Restated Revolving and Term
Loan Agreement dated as of March 31,
1994, between Ruddick Corporation and
First Union National Bank of North
Carolina
4.2 Amended and Restated Revolving and Term
Loan Agreement dated as of March 31,
1994, between Ruddick Corporation and
NationsBank of North Carolina, National
Association
4.3 Amended and Restated Revolving and Term
Loan Agreement dated as of March 31,
1994, between Ruddick Corporation and
Wachovia Bank of North Carolina,
National Association
11 Statement re: Computation of per share
earnings
(B) REPORTS ON FORM 8-K - None
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.
RUDDICK CORPORATION
DATE: May 16, 1994 /S/ R. N. BRIGDEN
R. N. BRIGDEN
VICE PRESIDENT - FINANCE
(PRINCIPAL FINANCIAL OFFICER)
<PAGE>
EXHIBIT INDEX
Exhibit No.
(per Item 601 Description of
Sequential
Of Reg. S-K) Exhibit Page
No.
4.1 Amended and Restated Revolving and
Term Loan Agreement dated as of March
31, 1994, between Ruddick Corporation
and First Union National Bank of North
Carolina
4.2 Amended and Restated Revolving and
Term Loan Agreement dated as of March
31, 1994, between Ruddick Corporation
and NationsBank of North Carolina,
National Association
4.3 Amended and Restated Revolving and
Term Loan Agreement dated as of March
31, 1994, between Ruddick Corporation
and Wachovia Bank of North Carolina,
National Association
11 Statement Re: Computation of Per
Share Earnings
AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
THIS AGREEMENT, amended and restated as of this 31st day of
March, 1994 (the "Agreement") by and between RUDDICK CORPORATION,
a North Carolina corporation (herein called the "Borrower") and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA (the "Bank");
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank previously entered into a
Term Loan Agreement dated as of June 27, 1984, amended by (i) an
Amendment Agreement dated May 31, 1985 by and between the
Borrower and the Bank, (ii) a 1987 Amendment Agreement dated
July 1, 1987 by and between the Borrower and the Bank, (iii) a
1988 Amendment Agreement dated as of May 5, 1988 by and between
the Borrower and the Bank, (iv) a 1991 Amendment Agreement dated
as of March 27, 1991 by and between the Borrower and the Bank,
and (v) a 1992 Amendment Agreement dated as of April 23, 1992 by
and between the Borrower and the Bank (as so amended, the "1984
Loan Agreement"), pursuant to which the Bank has agreed to make
loans aggregating $15,000,000 (the "1991 Committed Amount") to
the Borrower, which loans currently are evidenced by the
Borrower's interim note dated March 27, 1991 (the "1991 Interim
Note"); and
WHEREAS, pursuant to the terms of the 1984 Loan Agreement
and the 1991 Interim Note, the Borrower could elect, not later
than April 1, 1994, to convert the outstanding principal amount
under the 1991 Interim Note to a term note due seven years after
the date thereof; and
WHEREAS, the Borrower has requested that the 1991 Committed
Amount under the 1984 Loan Agreement and the principal amount of
the 1991 Interim Note be increased to $20,000,000, and that the
period during which it can elect to convert the outstanding
principal amount under the 1991 Interim Note to the term note in
accordance with the terms of the 1984 Loan Agreement be extended
to April 1, 1997; and
WHEREAS, the Borrower and the Bank desire to amend and
restate the 1984 Loan Agreement in its entirety to reflect these
changes and certain other amendments;
NOW, THEREFORE, in consideration of the mutual covenants,
promises and conditions herein set forth, the Borrower and the
Bank hereby agree as follows:
1. The Revolving Loan.
(a) Commitment to Lend. Subject to the terms and
conditions of this Agreement, the Bank agrees to make a loan to
the Borrower, at any time and from time to time on or before
April 1, 1997, in a principal amount not in excess at any time of
$20,000,000 (the "Committed Amount", which Committed Amount is a
portion of aggregate financing commitments of $60,000,000 ("Total
Commitments") from the Bank, NationsBank of North Carolina,
National Association and Wachovia Bank of North Carolina, N.A.
(collectively, the "Banks")), provided that Borrower shall give
the Bank prior notice, by telephone to the Bank representative
indicated in Section 11(a) hereof, with respect to each and every
such borrowing. Prior to April 1, 1997, the Borrower may use the
Committed Amount by borrowing, paying and reborrowing such
amount, all in accordance with the terms and conditions of this
Agreement.
Borrower agrees to borrow, pay and reborrow in amounts from
the Banks on a pro rata basis as determined by each Bank's
Committed Amount in relation to Total Commitments. Each
borrowing from the Banks shall be in an aggregate amount of not
less than $100,000 or a multiple thereof, to be shared by the
Banks pro rata.
(b) The Interim Note. On or before the date of the first
borrowing hereunder, Borrower shall execute and deliver to the
Bank a promissory note (the "Interim Note") in the principal
amount of $20,000,000, dated as of the date of this Agreement and
payable in full three years after the date hereof, in form and
substance substantially similar to the attached Exhibit "A". The
Bank or subsequent holder is hereby authorized by the Borrower
and agrees to set forth on the reverse side of the Interim Note
issued to the Bank the amount of each interim loan made by it and
repayment made by the Borrower. Upon receipt of the Interim Note
of even date herewith, the Bank agrees to mark "cancelled" on the
face of the 1991 Interim Note and to release said 1991 Interim
Note to Borrower.
(c) Interest. The Interim Note issued to the Bank shall
bear interest on the unpaid principal amount outstanding from
time to time at a rate per annum equal to five-eighths of one
percent (5/8%) above the secondary Certificate of Deposit rate
for a maturity of 90 days as recorded by the New York Federal
Reserve Bank (212/791-6693) adjusted for current bank reserve
requirements and Federal Deposit Insurance Corporation insurance
for Certificates of Deposit in excess of $100,000 (the "90-day
C.D. Rate"). Interest is payable quarterly in arrears and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Any change in the interest rate
resulting from a change in the 90-day C.D. Rate shall become
effective as of the opening of business on the date of such
change in the interest rate caused by a change in the 90-day C.D.
Rate. The interest due dates shall be the first business day of
each January, April, July and October of each year beginning with
the first business day of July, 1994. Interest on the Interim
Note after default shall be one hundred fifty percent (150%) of
the Prime Rate, not to exceed the highest rate permitted by
applicable law. The Prime Rate as used herein and in the Interim
Note and the Term Note (hereinafter defined) refers to that
interest rate set by the Bank from time to time as an interest
rate basis for borrowings. The Prime Rate is one of several
interest rate bases used by the Bank. The Bank lends at rates
above and below the Prime Rate.
(d) Repayments. Each repayment to the Banks shall be in an
aggregate amount of not less than $100,000 or a multiple thereof,
each such repayment to be shared on a pro rata basis by the Banks
as determined by each Bank's Committed Amount in relation to
Total Commitments, provided that Borrower shall give the Banks
not less than forty-eight (48) hours prior notice, by telephone
to the Bank Representative indicated in Section 11(a) hereof,
with respect to each and every such repayment.
2. The Optional Term Loan.
(a) Commitment to Lend. Subject to the terms and
conditions of this Agreement, at any time up to April 1, 1997,
Borrower, at its election, may convert an amount up to the
Committed Amount into a seven-year term loan, and the Bank hereby
agrees to extend such term loan upon the terms and conditions
hereinafter provided.
(b) The Term Note. On or before the date the Borrower
elects to convert an amount up to the Committed Amount into a
term loan as provided above, the Borrower shall execute and
deliver to the Bank a seven-year term note (the "Term Note") in
the principal amount of the indebtedness Borrower elects to incur
on a term basis, dated the date Borrower elects to convert, in
form and substance substantially similar to the attached Exhibit
"B", with blanks appropriately completed. The Term Note shall be
payable in twenty-eight equal, consecutive quarterly
installments, on the first business day of each January, April,
July and October, beginning with the first such date occurring
after the date of the Term Note.
(c) Interest. The Term Note issued to each Bank shall bear
interest at a rate per annum equal to the sum of (i) three-
quarters of one percent (3/4%) for the first three years of the
term of the Term Note and seven-eighths of one percent (7/8%) for
the next four years on the term of the Term Note plus (ii) the
90-day C.D. Rate as reflected on the first business day of each
calendar quarter.
Interest is payable quarterly in arrears on the first
business day of each January, April, July and October beginning
on the first such date after the date of the Term Note and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Immediately after the Term Note is
executed, but in no event later than April 1, 1997, the Bank's
commitment to make loans under the Interim Note shall terminate.
Interest on the Term Note after default shall be at One
Hundred Fifty Percent (150%) of the Prime Rate, not to exceed the
highest rate permitted by applicable law.
(d) Prepayment of the Term Note.
On the first business day of any January, April, July or
October the Borrower may prepay all or any portion of the
indebtedness evidenced by the Term Note without penalty or fee,
provided that each prepayment to the Banks shall be in an
aggregate amount of not less than $100,000 or a multiple thereof,
with accrued interest on the prepaid principal to the date of
prepayment, each prepayment to be shared on a pro rata basis by
the Banks as determined by each Bank's Committed Amount in
relation to Total Commitments, and provided further that Borrower
shall give the Banks not less than forty-eight (48) hours prior
notice, by telephone to the Bank Representative indicated in
Section 11(a) hereof, with respect to each and every such
prepayment. Any prepayment shall be applied to the then last
maturing installment of principal.
3. Refund of Interest.
On April 1, 1997, the total interest paid under the Notes
(as hereinafter defined) from April 1, 1994 shall be refunded to
Borrower to the extent such interest exceeds 14% per annum on the
amounts outstanding from time to time under the Notes for such
three-year period.
On April 1, 2000, the total interest paid under the Term
Note from April 1, 1997 shall be refunded to Borrower to the
extent such interest exceeds 15% per annum on the amounts
outstanding from time to time under the Term Note for such three-
year period.
4. Commitment Fee.
(a) Amount. Until the Borrower's option to borrow
hereunder has been fully exercised or Borrower has converted the
Interim Note to the Term Note, the Borrower will pay the Bank a
commitment fee of one-quarter of one percent (1/4%) per annum on
the daily average of the unused portion of the Bank's Committed
Amount hereunder, payable from the date hereof on the interest
due dates set out in the Interim Note in the form of Exhibit "A".
(b) Termination or Reduction of Committed Amount. So long
as the Interim Note is outstanding, Borrower shall have the right
from time to time upon not less than three (3) days' prior
written notice to the Banks to terminate, or to reduce, the Total
Commitments and the Bank's Committed Amount on a pro rata basis.
Any partial reduction shall be in an amount equal to 5% of Total
Commitments or any integral multiple thereof and shall reduce
permanently the Bank's Committed Amount as a pro rata share of
Total Commitments. Each reduction shall be accompanied by a
prepayment of the Interim Note (together with accrued interest
thereon) to the extent that the principal amount thereof then
outstanding exceeds the Committed Amount as so reduced.
5. Representations and Warranties. In borrowing
hereunder, the Borrower represents and warrants to the Bank,
which representations and warranties will survive the delivery of
the Notes (which term shall include the Interim Note and the Term
Note provided for herein), and the making of the loans hereunder,
as follows:
(a) Due Incorporation, Etc. The Borrower and each
Restricted Subsidiary (as defined in that certain Loan
Agreement dated April 23, 1992 by and among the Borrower and
the Banks (the "1992 Term Loan Agreement")) is a corporation
duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is incorporated,
and has the corporate power and legal authority to own its
property and to carry on its business as now being conducted
and is duly qualified to transact business as a foreign
corporation in every jurisdiction where such qualification
is necessary. The Borrower has the corporate power to
execute and perform this Agreement, to borrow hereunder and
to execute and deliver the Notes, and to do so will not
violate its Articles of Incorporation or Bylaws, any law to
which it is subject, or any agreement or instrument to which
it is a party.
(b) Litigation. Except as set forth in the financial
statements described in Section 5(c) hereof, there is no
litigation or proceeding pending or, to the knowledge of the
Borrower, threatened which, if decided adversely to the
Borrower or any subsidiary, would have a material adverse
effect upon the financial condition or business of the
Borrower and its subsidiaries, taken as a whole.
(c) Financial Condition. The Consolidated Balance
Sheet of the Borrower and its subsidiaries as at October 3,
1993 and the related Statements of Consolidated Income and
Retained Earnings and Statements of Cash Flows of the
Borrower and its subsidiaries for the fiscal year then
ended, all of which have been delivered to the Bank prior to
the execution of this Agreement, are correct and complete
and fairly present the financial condition of the Borrower
and its subsidiaries and the results of their operations and
their retained earnings as of the dates and for the periods
referred to. The consolidated balance sheets of the
Borrower and its subsidiaries as at January 2, 1994 and the
related statements of consolidated income and retained
earnings and statements of consolidated cash flows for the
three-month period then ended, copies of which have been
furnished to the Bank, are true and correct and present
fairly, subject to normal recurring year-end adjustments,
the financial condition of the Borrower and its subsidiaries
as at such date and the results of their operations and
their retained earnings as of such date and for such period.
All financial statements have been prepared in accordance
with generally accepted accounting principles consistently
applied throughout the periods involved. Since January 2,
1994, no material adverse changes in the financial
condition, the business or operations of the Borrower and
its subsidiaries, taken as a whole, have occurred.
The real estate and other fixed assets of the Borrower
and its subsidiaries are subject to no mortgage or lien
securing an indebtedness of a material principal amount
except as shown in the balance sheets referred to above.
The Borrower and its subsidiaries have no liabilities,
direct or contingent, except those disclosed in the audit
report and interim statements referred to above, and except
those arising in the ordinary course of business since the
date of such audit report and interim statements, having in
the aggregate no materially adverse effect on the financial
condition of the Borrower and its subsidiaries, taken as a
whole. The Borrower and its subsidiaries have made no
investments in, advances to or guaranties of the obligations
of any corporation, individual or other entity other than
Borrower in an aggregate amount material to the consolidated
financial condition of the Borrower and its subsidiaries,
taken as a whole, except those disclosed in the financial
statements referred to above.
(d) Governmental Contracts. The Borrower and its
subsidiaries are not subject to the renegotiation of any
government contract in any material amount.
(e) Tax Returns. The Borrower and its subsidiaries
have filed all required federal, state, and local tax
returns and have paid all taxes as shown on such returns as
they have become due. Federal income tax returns have been
audited, or closed by the operation of applicable statutes
of limitation, through 1989, and no claims have been
assessed and are unpaid with respect to such taxes except as
shown in the audit report or interim financial statement
referred to in Section 5(c) above.
(f) Use of Proceeds. The proceeds of all borrowings
hereunder will be used for general corporate purposes and
for working capital.
6. Conditions to Closing.
(a) Conditions Precedent. The obligation of the Bank to
lend hereunder is subject to the following conditions precedent:
(1) Legal Opinion. On or before the date hereof, the
Bank shall have received the favorable written opinion of
Smith Helms Mulliss & Moore, L.L.P., counsel for the
Borrower, addressed to the Bank, and satisfactory in form
and substance to the Bank's counsel, substantially in the
form of Exhibit C attached hereto.
(2) Corporate Resolutions. The Bank shall have
received, on or before the date of the first borrowing
hereunder, (A) a copy of the resolutions of the Board of
Directors, or appropriate committee thereof, of the
Borrower, certified on such date, authorizing the execution
and delivery of this Agreement, the borrowing hereunder and
the execution and delivery of the Notes; and (B) such
additional documents as the Bank or counsel for the Bank may
reasonably request.
(3) Representations and Warranties. On the date of
any borrowing hereunder, the representations and warranties
set forth in Section 5 hereof shall be true and correct on
and as of such date with the same effect as though such
representations and warranties had been made on and as of
such date.
(4) Due Compliance. At the time of each borrowing
hereunder, the Borrower and each subsidiary shall be in
compliance with all of the terms and provisions set forth
herein on their part to be observed and performed, and no
Event of Default as specified in Section 10 below, nor any
event which upon notice or lapse of time, or both, would
constitute such an Event of Default, shall have occurred at
the time of such borrowing.
(b) Covenant and Condition Subsequent. The Borrower shall
deliver to the Bank, not more than ninety (90) days after the
date of the first borrowing hereunder, (1) such collateral or
evidence of the priority of the Bank's position as a creditor,
all in form and substance satisfactory to the Bank; and (2) such
additional documents as the Bank or counsel for the Bank may
reasonably request.
7. Covenants. The Borrower covenants and agrees that from
the date hereof and until payment in full of the principal and
interest on the Notes, unless the Bank shall otherwise consent in
writing, the Borrower will duly comply with all provisions and
terms of Sections 5 and 6 of the 1992 Term Loan Agreement, and
the same are hereby incorporated herein with the same force and
effect as if they were expressly set out herein, regardless of
whether the indebtedness issued thereunder shall have been
satisfied. The Bank and the Borrower confirm that the current
level of Consolidated Tangible Net Worth (as defined in the 1992
Term Loan Agreement) to be maintained during Fiscal Year (as
defined in the 1992 Term Loan Agreement) 1994 is $225,865,000.
Borrower will not, without the written consent of the Bank, enter
into any agreement that would substantially or materially alter,
amend, or grant to it or any subsidiary a waiver of any provision
of the 1992 Term Loan Agreement. Borrower will deliver to the
Bank a certificate dated the closing date and signed by the
President or a Vice President and the Treasurer or an Assistant
Treasurer of the Borrower certifying that, after giving effect to
the loan hereunder the Borrower is in compliance with the
restrictions contained in the 1992 Term Loan Agreement.
8. Opinions and Notice of Other Default.
The Borrower shall furnish at the reasonable request of the
Bank opinions of legal counsel and certificates of its officers,
satisfactory to the Bank, regarding matters incident to this
Agreement. In addition, the Borrower shall give the Bank prompt
written notice of the occurrence of any Event of Default under
the terms of this Agreement and of a default or failure of
performance under any other agreement or contract to which it is
a party or by which it is bound.
9. Documentary Stamps.
If any documentary or recording tax should be assessed or
the affixing of any stamps be required in connection with the
borrowing hereunder or the security therefor, by state or federal
governments, the Borrower will pay the tax and the cost of the
stamps.
10. Default.
The occurrence of any one or more of the following Events of
Default will constitute a default by the Borrower under this
Agreement, whereupon the Notes and all indebtedness of the
Borrower to the Bank will, at the option of the Bank, immediately
become due and payable without presentation, demand, protest, or
notice of any kind, all of which are hereby expressly waived, and
the Borrower will pay the reasonable attorney's fees incurred by
the Bank in connection with such default or recourse against any
collateral held by the Bank as security for the indebtedness owed
by the Borrower:
(a) Non-payment when due, whether by acceleration or
otherwise, of any principal payment on either of the Notes;
(b) Non-payment, within ten days after the due date,
of interest on either of the Notes, or of any premium, fee
or other charge under this Agreement;
(c) A breach or failure of performance by the Borrower
or any subsidiary of any provision of this Agreement which
is not remedied within 30 days after written notice from the
Bank;
(d) A representation or warranty by the Borrower is
false or erroneous in any material respect on the date as of
which made;
(e) Borrower or a Restricted Subsidiary: (i) files a
petition or has a petition filed against it under the
Bankruptcy Code or any proceeding for the relief of
insolvent debtors; (ii) generally fails to pay its debts as
such debts become due; (iii) has a custodian appointed for
it or its assets; (iv) benefits from or is subject to the
entry of an order for relief by any court of insolvency; (v)
makes an admission of insolvency seeking the relief provided
in the Bankruptcy Code or any other insolvency law; (vi)
makes an assignment for the benefit of creditors; (vii) has
a receiver appointed, voluntarily or otherwise, for its
property; (viii) suspends business; (ix) permits a judgment
in the amount of $250,000 or more to be obtained against it
which is not promptly paid or promptly appealed and secured
pending appeal; or (x) becomes insolvent, however otherwise
evidenced;
(f) Failure by Borrower or a Restricted Subsidiary to
pay when due, or within any applicable grace period, any
amount owing on account of indebtedness for money borrowed
or the failure by Borrower or a Restricted Subsidiary to
observe or perform any covenant or undertaking on its part
to be observed or performed in any agreement evidencing,
securing or relating to such indebtedness, resulting in any
such case in an event of default or acceleration by the
holder of such indebtedness of the date on which such
indebtedness would otherwise be due and payable; or
(g) If there occurs a change in control of the
Borrower as defined in Section 7.01(h) of the 1992 Term Loan
Agreement.
11. General.
(a) All notices with respect to this Agreement shall
be deemed to be completed upon mailing first class,
certified or registered mail, postage prepaid, addressed as
follows or to such other address as the parties hereto shall
have been notified:
The Borrower: Ruddick Corporation
2000 Two First Union Center
Charlotte, North Carolina 28282
Attention: Vice President-Finance
The Bank: First Union National Bank of North Carolina
North Carolina Corporate Banking
301 South Tryon Street
Charlotte, North Carolina 28288-0145
Attention: Bert M. Corum
(b) No failure or delay by the Bank to exercise any
right, power or privilege hereunder shall operate as a
waiver of any such right, power or privilege, nor shall any
single or partial exercise of any right, power or privilege
preclude any other or future exercise thereof. The rights
and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
(c) The provisions of this Agreement shall extend to
and be available to any subsequent holder of the Notes, as
well as to the Bank.
(d) The Agreement and the Notes shall be deemed to be
contracts made under, and for all purposes shall be
construed in accordance with, the laws of the State of North
Carolina.
12. Restatement.
This Agreement amends, restates and supersedes the 1984 Loan
Agreement in its entirety, and such 1984 Loan Agreement shall be
of no further force or effect.
[Signatures appear on following page]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the year and day first above
written.
ATTEST: RUDDICK CORPORATION
\s\ D.B. Williford By:\s\ Richard N. Brigden
Secretary Richard N. Brigden
Vice President-Finance
(Corporate Seal)
ATTEST: FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
\s\ William W. Tyson By:\s\ Bert M. Corum
Secretary Vice President
<PAGE>
EXHIBIT A
RUDDICK CORPORATION
INTERIM NOTE
March 31, 1994 $20,000,000
For value received, RUDDICK CORPORATION (the "Borrower")
promises to pay to the order of FIRST UNION NATIONAL BANK OF
NORTH CAROLINA (the "Bank") at its main office in Charlotte,
North Carolina, the amount of the unpaid principal balance, not
exceeding $20,000,000, specified on the reverse hereof in
accordance with Section 1 of the Loan Agreement (as herein
defined), and to pay interest at said office, from the date
hereof on the unpaid principal balance owing hereunder from time
to time at a rate of five-eighths of one percent (5/8%) above the
secondary Certificate of Deposit rate for a maturity of 90 days
as recorded by the New York Federal Reserve Bank (212/791-6693),
adjusted for current bank reserve requirements and Federal
Deposit Insurance Corporation insurance for Certificates of
Deposit in excess of $100,000 (the "90-day C.D. Rate"). Interest
is payable quarterly in arrears and is computed on the basis of a
360-day year for the actual number of days in each interest
period. Any change in the interest rate resulting from a change
in the 90-day C.D. Rate shall become effective as of the opening
of business on the date of such change in the interest rate
caused by a change in the 90-day C.D. Rate. The interest due
dates shall be the first business day of each January, April,
July and October of each year beginning the first business day of
July 1994. Interest on the Interim Note after default shall be
one hundred fifty percent (150%) of the Prime Rate, not to exceed
the highest rate permitted by applicable law. The Prime Rate as
used herein refers to that interest rate set by the Bank from
time to time as an interest rate basis for borrowings. The Prime
Rate is one of several interest rate bases used by the Bank. The
Bank lends at rates above and below the Prime Rate. Interest
paid under this Note may be refunded to Borrower as provided in
Section 3 of the Loan Agreement (as herein defined), which is
incorporated herein by reference.
This Note ("Interim Note") represents an interim borrowing
under an Amended and Restated Revolving and Term Loan Agreement
dated as of the date hereof by and between the Borrower and the
Bank (the "Loan Agreement"), and the terms and conditions set
forth in the Loan Agreement are incorporated herein by reference
and shall be considered a part hereof to the same extent as if
written herein. All capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the
Loan Agreement.
In addition to the provisions relating to occurrences of
other Events of Default set forth in the Loan Agreement, upon (i)
non-payment when due, whether by acceleration or otherwise, of
the principal or (ii) non-payment, within ten (10) days after the
due date thereof, of interest or of any premium, fee or other
charge under the Loan Agreement, the entire principal and any
accrued interest under this Interim Note shall, at the option of
the holder hereof, become immediately due and payable without
presentation, demand, protest, or notice of any kind, all of
which are hereby expressly waived, and Borrower shall pay to the
Bank reasonable attorneys' fees in connection with such default
or recourse against any collateral held by the Bank as security
for the Borrower's indebtedness.
Not later than April 1, 1997, Borrower may elect to convert
the remaining outstanding principal amount of this Note to a Term
Note as provided for in Section 2 of the Loan Agreement.
All parties to this Interim Note, including endorsers,
sureties and guarantors, if any, hereby waive presentment for
payment, demand, protest, notice of non-payment or dishonor, and
of protest, and any and all other notices and demands whatsoever,
and agree to remain bound until the interest and principal are
paid in full notwithstanding any extension or extensions of time
for payment which may be granted even though the period of
extension may be indefinite, and notwithstanding any inaction by,
or failure to assert any legal right available to, the holder of
this Note.
IN WITNESS WHEREOF, Borrower has caused this instrument to
be executed in its corporate name and its seal affixed hereto by
its duly authorized officers pursuant to a resolution of its
Board of Directors, or appropriate committee thereof, duly
adopted.
RUDDICK CORPORATION
By:________________________________
Richard N. Brigden
Vice President-Finance
(SEAL OF RUDDICK CORPORATION)
ATTEST:
By:_________________________
Secretary
<PAGE>
EXHIBIT B
RUDDICK CORPORATION
TERM NOTE
_________________________ $__________
For value received, RUDDICK CORPORATION (the "Borrower")
promises to pay to the order of __________________________ (the
"Bank") at its main office in Charlotte, North Carolina, the
principal sum of ____________________ Dollars ($__________) with
interest upon unpaid principal from the date hereof payable in
arrears on each principal payment date at a rate per annum equal
to the sum of (i) three-quarters of one percent (3/4%) for the
first three years of the term of the Term Note and seven-eighths
of one percent (7/8%) for the next four years of the term of the
Term Note plus (ii) the secondary Certificate of Deposit rate for
a maturity of 90 days as recorded by the New York Federal Reserve
Bank (212/791-6693), adjusted for current bank reserve
requirements and Federal Deposit Insurance Corporation insurance
for Certificates of Deposit in excess of $100,000 (the "90-day
C.D. Rate").
Interest is payable quarterly in arrears on the first
business day of each January, April, July and October and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Immediately after the Term Note is
executed, but in no event later than April 1, 1997, the Bank's
commitment under the Interim Note shall terminate.
Interest on the Term Note after default shall be at One
Hundred Fifty Percent (150%) of the Prime Rate not to exceed the
highest rate permitted by applicable law. The Prime Rate as used
herein and in the Term Note refers to that interest rate set by
the Bank from time to time as an interest rate basis for
borrowings. The Prime Rate is one of several interest rate bases
used by the Bank. The Bank lends at rates above and below the
Prime Rate.
Interest paid under this Note may be refunded to Borrower as
provided in Section 3 of the Loan Agreement (as herein defined),
which is incorporated herein by reference.
The principal of this Note ("Term Note") shall be paid in
twenty-eight (28) consecutive and equal quarterly installments,
each in the amount of _______________. The first such
installment shall be due on the first business day of __________,
1997, and a like amount on the first business day of each quarter
thereafter until the _____ day of __________, 2004, when the
final installment will be paid.
The terms and conditions contained in an Amended and
Restated Revolving and Term Loan Agreement dated March 31, 1994
by and between the Borrower and the Bank (the "Loan Agreement"),
are incorporated herein by reference and shall be considered a
part hereof to the same extent as if written herein. All
capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Loan Agreement.
In addition to the provisions relating to occurrences of
other Events of Default set forth in the Loan Agreement, upon (i)
non-payment when due, whether by acceleration or otherwise, of
any principal installment or (ii) non-payment, within ten (10)
days after the due date thereof, of interest or of any premium,
fee or other charge under the Loan Agreement, the entire
principal and any accrued interest under this Term Note (and any
other outstanding Note as defined in the Loan Agreement) shall,
at the option of the holder hereof, become immediately due and
payable without presentation, demand, protest, or notice of any
kind, all of which are expressly waived, and Borrower shall pay
to the Bank reasonable attorneys' fees in connection with such
default or recourse against any collateral held by the Bank as
security for the Borrower's indebtedness.
All parties to this Term Note, including endorsers, sureties
and guarantors, if any, hereby waive presentment for payment,
demand, protest, notice of non-payment or dishonor, and of
protest, and any and all other notices and demands whatsoever,
and agree to remain bound until the interest and principal are
paid in full notwithstanding any extension or extensions of time
for payment which may be granted, even though the period of
extension may be indefinite, and notwithstanding any inaction by,
or failure to assert any legal right available to the holder of
this Term Note.
IN WITNESS WHEREOF, the Borrower has caused this instrument
to be executed in its corporate name and its seal affixed hereto
by its duly authorized officers pursuant to a resolution of its
Board of Directors, or an appropriate committee thereof, duly
adopted.
RUDDICK CORPORATION
By:________________________________
Vice President
(SEAL OF RUDDICK CORPORATION)
ATTEST:
By:_________________________
Secretary
EXHIBIT C
Opinion of Smith Helms Mulliss & Moore, L.L.P.
1. Each of the Borrower and American & Efird, Inc., Harris
Teeter, Inc., Jordan Graphics, Inc. and R. S. Dickson & Co.
(each, a "Major Subsidiary") is a corporation duly organized,
existing and in good standing under the laws of the State of
North Carolina and has the corporate power to own its properties
and to carry on its business as now being conducted. To the best
of our knowledge after due inquiry, the Borrower is not engaged
in any activity that would require it to qualify to do business
in any jurisdiction other than North Carolina. While we have not
made any inquiry of governmental officials in any jurisdiction
other than North Carolina, we have no reason to believe that any
of the Major Subsidiaries as of the date hereof has failed to
qualify to do business in any foreign jurisdiction where the
failure to qualify would have a materially adverse effect on the
consolidated financial condition of the Borrower and its
subsidiaries, or that any of the Major Subsidiaries is not in
good standing in each jurisdiction where it is so qualified.
2. The Borrower is duly authorized under all applicable
provisions of law to execute and deliver the Agreement and the
Notes and all corporate action on its part required for the
lawful execution, delivery and performance thereof has been duly
taken; and the Interim Note has been duly executed and delivered
by the proper officers of the Borrower and upon receipt by the
Borrower of the loan evidenced thereby will be entitled to the
benefits of the Agreement; and the Agreement and the Interim Note
are the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their terms, subject as to
enforcement of remedies to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right to
specific enforcement of remedies, and further subject to the
application of principles of public policy.
3. Neither the execution, creation or issuance of the
Agreement or the Notes, nor the fulfillment of or compliance with
their terms, will conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a violation of
or default under, any applicable law, regulation, or writ or
decree or the Articles of Incorporation or Bylaws of the Borrower
or any of the Major Subsidiaries as of the date hereof, or, to
our knowledge, any agreement or instrument to which the Borrower
or any Major Subsidiary is a party, or, to our knowledge, create
any lien, charge or encumbrance upon any of the property or
assets of the Borrower or any Major Subsidiary pursuant to the
terms of any agreement or instrument to which the Borrower or any
Major Subsidiary is a party or by which they are bound.
4. No authorization, approval or consent of any regulatory
body is necessary or required in connection with the lawful
execution, delivery and performance of the Agreement or the Notes
which has not been obtained.
AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
THIS AGREEMENT, amended and restated as of this 31st day of
March, 1994 (the "Agreement") by and between RUDDICK CORPORATION,
a North Carolina corporation (herein called the "Borrower") and
NATIONSBANK OF NORTH CAROLINA, NATIONAL ASSOCIATION (the "Bank");
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank previously entered into a
Term Loan Agreement dated as of June 27, 1984, amended by (i) a
Consent Letter dated May 28, 1985 by and between the Borrower and
the Bank, (ii) a 1987 Amendment Agreement dated July 1, 1987 by
and between the Borrower and the Bank, (iii) a 1988 Amendment
Agreement dated as of May 5, 1988 by and between the Borrower and
the Bank, (iv) a 1991 Amendment Agreement dated as of March 27,
1991 by and between the Borrower and the Bank, and (v) a 1992
Amendment Agreement dated as of April 23, 1992 by and between the
Borrower and the Bank (as so amended, the "1984 Loan Agreement"),
pursuant to which the Bank has agreed to make loans aggregating
$15,000,000 (the "1991 Committed Amount") to the Borrower, which
loans currently are evidenced by the Borrower's interim note
dated March 27, 1991 (the "1991 Interim Note"); and
WHEREAS, pursuant to the terms of the 1984 Loan Agreement
and the 1991 Interim Note, the Borrower could elect, not later
than April 1, 1994, to convert the outstanding principal amount
under the 1991 Interim Note to a term note due seven years after
the date thereof; and
WHEREAS, the Borrower has requested that the 1991 Committed
Amount under the 1984 Loan Agreement and the principal amount of
the 1991 Interim Note be increased to $20,000,000, and that the
period during which it can elect to convert the outstanding
principal amount under the 1991 Interim Note to the term note in
accordance with the terms of the 1984 Loan Agreement be extended
to April 1, 1997; and
WHEREAS, the Borrower and the Bank desire to amend and
restate the 1984 Loan Agreement in its entirety to reflect these
changes and certain other amendments;
NOW, THEREFORE, in consideration of the mutual covenants,
promises and conditions herein set forth, the Borrower and the
Bank hereby agree as follows:
1. The Revolving Loan.
(a) Commitment to Lend. Subject to the terms and
conditions of this Agreement, the Bank agrees to make a loan to
the Borrower, at any time and from time to time on or before
April 1, 1997, in a principal amount not in excess at any time of
$20,000,000 (the "Committed Amount", which Committed Amount is a
portion of aggregate financing commitments of $60,000,000 ("Total
Commitments") from the Bank, First Union National Bank of North
Carolina and Wachovia Bank of North Carolina, N.A. (collectively,
the "Banks")), provided that Borrower shall give the Bank prior
notice, by telephone to the Bank representative indicated in
Section 11(a) hereof, with respect to each and every such
borrowing. Prior to April 1, 1997, the Borrower may use the
Committed Amount by borrowing, paying and reborrowing such
amount, all in accordance with the terms and conditions of this
Agreement.
Borrower agrees to borrow, pay and reborrow in amounts from
the Banks on a pro rata basis as determined by each Bank's
Committed Amount in relation to Total Commitments. Each
borrowing from the Banks shall be in an aggregate amount of not
less than $100,000 or a multiple thereof, to be shared by the
Banks pro rata.
(b) The Interim Note. On or before the date of the first
borrowing hereunder, Borrower shall execute and deliver to the
Bank a promissory note (the "Interim Note") in the principal
amount of $20,000,000, dated as of the date of this Agreement and
payable in full three years after the date hereof, in form and
substance substantially similar to the attached Exhibit "A". The
Bank or subsequent holder is hereby authorized by the Borrower
and agrees to set forth on the reverse side of the Interim Note
issued to the Bank the amount of each interim loan made by it and
repayment made by the Borrower. Upon receipt of the Interim Note
of even date herewith, the Bank agrees to mark "cancelled" on the
face of the 1991 Interim Note and to release said 1991 Interim
Note to Borrower.
(c) Interest. The Interim Note issued to the Bank shall
bear interest on the unpaid principal amount outstanding from
time to time at a rate per annum equal to five-eighths of one
percent (5/8%) above the secondary Certificate of Deposit rate
for a maturity of 90 days as recorded by the New York Federal
Reserve Bank (212/791-6693) adjusted for current bank reserve
requirements and Federal Deposit Insurance Corporation insurance
for Certificates of Deposit in excess of $100,000 (the "90-day
C.D. Rate"). Interest is payable quarterly in arrears and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Any change in the interest rate
resulting from a change in the 90-day C.D. Rate shall become
effective as of the opening of business on the date of such
change in the interest rate caused by a change in the 90-day C.D.
Rate. The interest due dates shall be the first business day of
each January, April, July and October of each year beginning with
the first business day of July, 1994. Interest on the Interim
Note after default shall be one hundred fifty percent (150%) of
the Prime Rate, not to exceed the highest rate permitted by
applicable law. The Prime Rate as used herein and in the Interim
Note and the Term Note (hereinafter defined) refers to that
interest rate set by the Bank from time to time as an interest
rate basis for borrowings. The Prime Rate is one of several
interest rate bases used by the Bank. The Bank lends at rates
above and below the Prime Rate.
(d) Repayments. Each repayment to the Banks shall be in an
aggregate amount of not less than $100,000 or a multiple thereof,
each such repayment to be shared on a pro rata basis by the Banks
as determined by each Bank's Committed Amount in relation to
Total Commitments, provided that Borrower shall give the Banks
not less than forty-eight (48) hours prior notice, by telephone
to the Bank Representative indicated in Section 11(a) hereof,
with respect to each and every such repayment.
2. The Optional Term Loan.
(a) Commitment to Lend. Subject to the terms and
conditions of this Agreement, at any time up to April 1, 1997,
Borrower, at its election, may convert an amount up to the
Committed Amount into a seven-year term loan, and the Bank hereby
agrees to extend such term loan upon the terms and conditions
hereinafter provided.
(b) The Term Note. On or before the date the Borrower
elects to convert an amount up to the Committed Amount into a
term loan as provided above, the Borrower shall execute and
deliver to the Bank a seven-year term note (the "Term Note") in
the principal amount of the indebtedness Borrower elects to incur
on a term basis, dated the date Borrower elects to convert, in
form and substance substantially similar to the attached Exhibit
"B", with blanks appropriately completed. The Term Note shall be
payable in twenty-eight equal, consecutive quarterly
installments, on the first business day of each January, April,
July and October, beginning with the first such date occurring
after the date of the Term Note.
(c) Interest. The Term Note issued to each Bank shall bear
interest at a rate per annum equal to the sum of (i) three-
quarters of one percent (3/4%) for the first three years of the
term of the Term Note and seven-eighths of one percent (7/8%) for
the next four years on the term of the Term Note plus (ii) the
90-day C.D. Rate as reflected on the first business day of each
calendar quarter.
Interest is payable quarterly in arrears on the first
business day of each January, April, July and October beginning
on the first such date after the date of the Term Note and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Immediately after the Term Note is
executed, but in no event later than April 1, 1997, the Bank's
commitment to make loans under the Interim Note shall terminate.
Interest on the Term Note after default shall be at One
Hundred Fifty Percent (150%) of the Prime Rate, not to exceed the
highest rate permitted by applicable law.
(d) Prepayment of the Term Note.
On the first business day of any January, April, July or
October the Borrower may prepay all or any portion of the
indebtedness evidenced by the Term Note without penalty or fee,
provided that each prepayment to the Banks shall be in an
aggregate amount of not less than $100,000 or a multiple thereof,
with accrued interest on the prepaid principal to the date of
prepayment, each prepayment to be shared on a pro rata basis by
the Banks as determined by each Bank's Committed Amount in
relation to Total Commitments, and provided further that Borrower
shall give the Banks not less than forty-eight (48) hours prior
notice, by telephone to the Bank Representative indicated in
Section 11(a) hereof, with respect to each and every such
prepayment. Any prepayment shall be applied to the then last
maturing installment of principal.
3. Refund of Interest.
On April 1, 1997, the total interest paid under the Notes
(as hereinafter defined) from April 1, 1994 shall be refunded to
Borrower to the extent such interest exceeds 14% per annum on the
amounts outstanding from time to time under the Notes for such
three-year period.
On April 1, 2000, the total interest paid under the Term
Note from April 1, 1997 shall be refunded to Borrower to the
extent such interest exceeds 15% per annum on the amounts
outstanding from time to time under the Term Note for such three-
year period.
4. Commitment Fee.
(a) Amount. Until the Borrower's option to borrow
hereunder has been fully exercised or Borrower has converted the
Interim Note to the Term Note, the Borrower will pay the Bank a
commitment fee of one-quarter of one percent (1/4%) per annum on
the daily average of the unused portion of the Bank's Committed
Amount hereunder, payable from the date hereof on the interest
due dates set out in the Interim Note in the form of Exhibit "A".
(b) Termination or Reduction of Committed Amount. So long
as the Interim Note is outstanding, Borrower shall have the right
from time to time upon not less than three (3) days' prior
written notice to the Banks to terminate, or to reduce, the Total
Commitments and the Bank's Committed Amount on a pro rata basis.
Any partial reduction shall be in an amount equal to 5% of Total
Commitments or any integral multiple thereof and shall reduce
permanently the Bank's Committed Amount as a pro rata share of
Total Commitments. Each reduction shall be accompanied by a
prepayment of the Interim Note (together with accrued interest
thereon) to the extent that the principal amount thereof then
outstanding exceeds the Committed Amount as so reduced.
5. Representations and Warranties. In borrowing
hereunder, the Borrower represents and warrants to the Bank,
which representations and warranties will survive the delivery of
the Notes (which term shall include the Interim Note and the Term
Note provided for herein), and the making of the loans hereunder,
as follows:
(a) Due Incorporation, Etc. The Borrower and each
Restricted Subsidiary (as defined in that certain Loan
Agreement dated April 23, 1992 by and among the Borrower and
the Banks (the "1992 Term Loan Agreement")) is a corporation
duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is incorporated,
and has the corporate power and legal authority to own its
property and to carry on its business as now being conducted
and is duly qualified to transact business as a foreign
corporation in every jurisdiction where such qualification
is necessary. The Borrower has the corporate power to
execute and perform this Agreement, to borrow hereunder and
to execute and deliver the Notes, and to do so will not
violate its Articles of Incorporation or Bylaws, any law to
which it is subject, or any agreement or instrument to which
it is a party.
(b) Litigation. Except as set forth in the financial
statements described in Section 5(c) hereof, there is no
litigation or proceeding pending or, to the knowledge of the
Borrower, threatened which, if decided adversely to the
Borrower or any subsidiary, would have a material adverse
effect upon the financial condition or business of the
Borrower and its subsidiaries, taken as a whole.
(c) Financial Condition. The Consolidated Balance
Sheet of the Borrower and its subsidiaries as at October 3,
1993 and the related Statements of Consolidated Income and
Retained Earnings and Statements of Cash Flows of the
Borrower and its subsidiaries for the fiscal year then
ended, all of which have been delivered to the Bank prior to
the execution of this Agreement, are correct and complete
and fairly present the financial condition of the Borrower
and its subsidiaries and the results of their operations and
their retained earnings as of the dates and for the periods
referred to. The consolidated balance sheets of the
Borrower and its subsidiaries as at January 2, 1994 and the
related statements of consolidated income and retained
earnings and statements of consolidated cash flows for the
three-month period then ended, copies of which have been
furnished to the Bank, are true and correct and present
fairly, subject to normal recurring year-end adjustments,
the financial condition of the Borrower and its subsidiaries
as at such date and the results of their operations and
their retained earnings as of such date and for such period.
All financial statements have been prepared in accordance
with generally accepted accounting principles consistently
applied throughout the periods involved. Since January 2,
1994, no material adverse changes in the financial
condition, the business or operations of the Borrower and
its subsidiaries, taken as a whole, have occurred.
The real estate and other fixed assets of the Borrower
and its subsidiaries are subject to no mortgage or lien
securing an indebtedness of a material principal amount
except as shown in the balance sheets referred to above.
The Borrower and its subsidiaries have no liabilities,
direct or contingent, except those disclosed in the audit
report and interim statements referred to above, and except
those arising in the ordinary course of business since the
date of such audit report and interim statements, having in
the aggregate no materially adverse effect on the financial
condition of the Borrower and its subsidiaries, taken as a
whole. The Borrower and its subsidiaries have made no
investments in, advances to or guaranties of the obligations
of any corporation, individual or other entity other than
Borrower in an aggregate amount material to the consolidated
financial condition of the Borrower and its subsidiaries,
taken as a whole, except those disclosed in the financial
statements referred to above.
(d) Governmental Contracts. The Borrower and its
subsidiaries are not subject to the renegotiation of any
government contract in any material amount.
(e) Tax Returns. The Borrower and its subsidiaries
have filed all required federal, state, and local tax
returns and have paid all taxes as shown on such returns as
they have become due. Federal income tax returns have been
audited, or closed by the operation of applicable statutes
of limitation, through 1989, and no claims have been
assessed and are unpaid with respect to such taxes except as
shown in the audit report or interim financial statement
referred to in Section 5(c) above.
(f) Use of Proceeds. The proceeds of all borrowings
hereunder will be used for general corporate purposes and
for working capital.
6. Conditions to Closing.
(a) Conditions Precedent. The obligation of the Bank to
lend hereunder is subject to the following conditions precedent:
(1) Legal Opinion. On or before the date hereof, the
Bank shall have received the favorable written opinion of
Smith Helms Mulliss & Moore, L.L.P., counsel for the
Borrower, addressed to the Bank, and satisfactory in form
and substance to the Bank's counsel, substantially in the
form of Exhibit C attached hereto.
(2) Corporate Resolutions. The Bank shall have
received, on or before the date of the first borrowing
hereunder, (A) a copy of the resolutions of the Board of
Directors, or appropriate committee thereof, of the
Borrower, certified on such date, authorizing the execution
and delivery of this Agreement, the borrowing hereunder and
the execution and delivery of the Notes; and (B) such
additional documents as the Bank or counsel for the Bank may
reasonably request.
(3) Representations and Warranties. On the date of
any borrowing hereunder, the representations and warranties
set forth in Section 5 hereof shall be true and correct on
and as of such date with the same effect as though such
representations and warranties had been made on and as of
such date.
(4) Due Compliance. At the time of each borrowing
hereunder, the Borrower and each subsidiary shall be in
compliance with all of the terms and provisions set forth
herein on their part to be observed and performed, and no
Event of Default as specified in Section 10 below, nor any
event which upon notice or lapse of time, or both, would
constitute such an Event of Default, shall have occurred at
the time of such borrowing.
(b) Covenant and Condition Subsequent. The Borrower shall
deliver to the Bank, not more than ninety (90) days after the
date of the first borrowing hereunder, (1) such collateral or
evidence of the priority of the Bank's position as a creditor,
all in form and substance satisfactory to the Bank; and (2) such
additional documents as the Bank or counsel for the Bank may
reasonably request.
7. Covenants. The Borrower covenants and agrees that from
the date hereof and until payment in full of the principal and
interest on the Notes, unless the Bank shall otherwise consent in
writing, the Borrower will duly comply with all provisions and
terms of Sections 5 and 6 of the 1992 Term Loan Agreement, and
the same are hereby incorporated herein with the same force and
effect as if they were expressly set out herein, regardless of
whether the indebtedness issued thereunder shall have been
satisfied. The Bank and the Borrower confirm that the current
level of Consolidated Tangible Net Worth (as defined in the 1992
Term Loan Agreement) to be maintained during Fiscal Year (as
defined in the 1992 Term Loan Agreement) 1994 is $225,865,000.
Borrower will not, without the written consent of the Bank, enter
into any agreement that would substantially or materially alter,
amend, or grant to it or any subsidiary a waiver of any provision
of the 1992 Term Loan Agreement. Borrower will deliver to the
Bank a certificate dated the closing date and signed by the
President or a Vice President and the Treasurer or an Assistant
Treasurer of the Borrower certifying that, after giving effect to
the loan hereunder the Borrower is in compliance with the
restrictions contained in the 1992 Term Loan Agreement.
8. Opinions and Notice of Other Default.
The Borrower shall furnish at the reasonable request of the
Bank opinions of legal counsel and certificates of its officers,
satisfactory to the Bank, regarding matters incident to this
Agreement. In addition, the Borrower shall give the Bank prompt
written notice of the occurrence of any Event of Default under
the terms of this Agreement and of a default or failure of
performance under any other agreement or contract to which it is
a party or by which it is bound.
9. Documentary Stamps.
If any documentary or recording tax should be assessed or
the affixing of any stamps be required in connection with the
borrowing hereunder or the security therefor, by state or federal
governments, the Borrower will pay the tax and the cost of the
stamps.
10. Default.
The occurrence of any one or more of the following Events of
Default will constitute a default by the Borrower under this
Agreement, whereupon the Notes and all indebtedness of the
Borrower to the Bank will, at the option of the Bank, immediately
become due and payable without presentation, demand, protest, or
notice of any kind, all of which are hereby expressly waived, and
the Borrower will pay the reasonable attorney's fees incurred by
the Bank in connection with such default or recourse against any
collateral held by the Bank as security for the indebtedness owed
by the Borrower:
(a) Non-payment when due, whether by acceleration or
otherwise, of any principal payment on either of the Notes;
(b) Non-payment, within ten days after the due date,
of interest on either of the Notes, or of any premium, fee
or other charge under this Agreement;
(c) A breach or failure of performance by the Borrower
or any subsidiary of any provision of this Agreement which
is not remedied within 30 days after written notice from the
Bank;
(d) A representation or warranty by the Borrower is
false or erroneous in any material respect on the date as of
which made;
(e) Borrower or a Restricted Subsidiary: (i) files a
petition or has a petition filed against it under the
Bankruptcy Code or any proceeding for the relief of
insolvent debtors; (ii) generally fails to pay its debts as
such debts become due; (iii) has a custodian appointed for
it or its assets; (iv) benefits from or is subject to the
entry of an order for relief by any court of insolvency; (v)
makes an admission of insolvency seeking the relief provided
in the Bankruptcy Code or any other insolvency law; (vi)
makes an assignment for the benefit of creditors; (vii) has
a receiver appointed, voluntarily or otherwise, for its
property; (viii) suspends business; (ix) permits a judgment
in the amount of $250,000 or more to be obtained against it
which is not promptly paid or promptly appealed and secured
pending appeal; or (x) becomes insolvent, however otherwise
evidenced;
(f) Failure by Borrower or a Restricted Subsidiary to
pay when due, or within any applicable grace period, any
amount owing on account of indebtedness for money borrowed
or the failure by Borrower or a Restricted Subsidiary to
observe or perform any covenant or undertaking on its part
to be observed or performed in any agreement evidencing,
securing or relating to such indebtedness, resulting in any
such case in an event of default or acceleration by the
holder of such indebtedness of the date on which such
indebtedness would otherwise be due and payable; or
(g) If there occurs a change in control of the
Borrower as defined in Section 7.01(h) of the 1992 Term Loan
Agreement.
11. General.
(a) All notices with respect to this Agreement shall
be deemed to be completed upon mailing first class,
certified or registered mail, postage prepaid, addressed as
follows or to such other address as the parties hereto shall
have been notified:
The Borrower: Ruddick Corporation
2000 Two First Union Center
Charlotte, North Carolina 28282
Attention: Vice President-Finance
The Bank: NationsBank of North Carolina, National
Association
NationsBank Corporate Center
100 North Tryon Street
NC1-007-08-08
Charlotte, North Carolina 28255-0065
Attention: Mark M. Halmrast
(b) No failure or delay by the Bank to exercise any
right, power or privilege hereunder shall operate as a
waiver of any such right, power or privilege, nor shall any
single or partial exercise of any right, power or privilege
preclude any other or future exercise thereof. The rights
and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
(c) The provisions of this Agreement shall extend to
and be available to any subsequent holder of the Notes, as
well as to the Bank.
(d) The Agreement and the Notes shall be deemed to be
contracts made under, and for all purposes shall be
construed in accordance with, the laws of the State of North
Carolina.
12. Restatement.
This Agreement amends, restates and supersedes the 1984 Loan
Agreement in its entirety, and such 1984 Loan Agreement shall be
of no further force or effect.
[Signatures appear on following page]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the year and day first above
written.
ATTEST: RUDDICK CORPORATION
\s\ D.B.Williford By:\s\ Richard N. Brigden
Secretary Richard N. Brigden
Vice President-Finance
(Corporate Seal)
NATIONSBANK OF NORTH CAROLINA
NATIONAL ASSOCIATION
By:\s\ Mark D. Halmrast
Assistant Vice President
<PAGE>
EXHIBIT A
RUDDICK CORPORATION
INTERIM NOTE
March 31, 1994 $20,000,000
For value received, RUDDICK CORPORATION (the "Borrower")
promises to pay to the order of NATIONSBANK OF NORTH CAROLINA,
NATIONAL ASSOCIATION (the "Bank") at its main office in
Charlotte, North Carolina, the amount of the unpaid principal
balance, not exceeding $20,000,000, specified on the reverse
hereof in accordance with Section 1 of the Loan Agreement (as
herein defined), and to pay interest at said office, from the
date hereof on the unpaid principal balance owing hereunder from
time to time at a rate of five-eighths of one percent (5/8%)
above the secondary Certificate of Deposit rate for a maturity of
90 days as recorded by the New York Federal Reserve Bank
(212/791-6693), adjusted for current bank reserve requirements
and Federal Deposit Insurance Corporation insurance for
Certificates of Deposit in excess of $100,000 (the "90-day C.D.
Rate"). Interest is payable quarterly in arrears and is computed
on the basis of a 360-day year for the actual number of days in
each interest period. Any change in the interest rate resulting
from a change in the 90-day C.D. Rate shall become effective as
of the opening of business on the date of such change in the
interest rate caused by a change in the 90-day C.D. Rate. The
interest due dates shall be the first business day of each
January, April, July and October of each year beginning the first
business day of July 1994. Interest on the Interim Note after
default shall be one hundred fifty percent (150%) of the Prime
Rate, not to exceed the highest rate permitted by applicable law.
The Prime Rate as used herein refers to that interest rate set by
the Bank from time to time as an interest rate basis for
borrowings. The Prime Rate is one of several interest rate bases
used by the Bank. The Bank lends at rates above and below the
Prime Rate. Interest paid under this Note may be refunded to
Borrower as provided in Section 3 of the Loan Agreement (as
herein defined), which is incorporated herein by reference.
This Note ("Interim Note") represents an interim borrowing
under an Amended and Restated Revolving and Term Loan Agreement
dated as of the date hereof by and between the Borrower and the
Bank (the "Loan Agreement"), and the terms and conditions set
forth in the Loan Agreement are incorporated herein by reference
and shall be considered a part hereof to the same extent as if
written herein. All capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the
Loan Agreement.
In addition to the provisions relating to occurrences of
other Events of Default set forth in the Loan Agreement, upon (i)
non-payment when due, whether by acceleration or otherwise, of
the principal or (ii) non-payment, within ten (10) days after the
due date thereof, of interest or of any premium, fee or other
charge under the Loan Agreement, the entire principal and any
accrued interest under this Interim Note shall, at the option of
the holder hereof, become immediately due and payable without
presentation, demand, protest, or notice of any kind, all of
which are hereby expressly waived, and Borrower shall pay to the
Bank reasonable attorneys' fees in connection with such default
or recourse against any collateral held by the Bank as security
for the Borrower's indebtedness.
Not later than April 1, 1997, Borrower may elect to convert
the remaining outstanding principal amount of this Note to a Term
Note as provided for in Section 2 of the Loan Agreement.
All parties to this Interim Note, including endorsers,
sureties and guarantors, if any, hereby waive presentment for
payment, demand, protest, notice of non-payment or dishonor, and
of protest, and any and all other notices and demands whatsoever,
and agree to remain bound until the interest and principal are
paid in full notwithstanding any extension or extensions of time
for payment which may be granted even though the period of
extension may be indefinite, and notwithstanding any inaction by,
or failure to assert any legal right available to, the holder of
this Note.
IN WITNESS WHEREOF, Borrower has caused this instrument to
be executed in its corporate name and its seal affixed hereto by
its duly authorized officers pursuant to a resolution of its
Board of Directors, or appropriate committee thereof, duly
adopted.
RUDDICK CORPORATION
By:________________________________
Richard N. Brigden
Vice President-Finance
(SEAL OF RUDDICK CORPORATION)
ATTEST:
By:_________________________
Secretary
<PAGE>
EXHIBIT B
RUDDICK CORPORATION
TERM NOTE
_________________________ $__________
For value received, RUDDICK CORPORATION (the "Borrower")
promises to pay to the order of __________________________ (the
"Bank") at its main office in Charlotte, North Carolina, the
principal sum of ____________________ Dollars ($__________) with
interest upon unpaid principal from the date hereof payable in
arrears on each principal payment date at a rate per annum equal
to the sum of (i) three-quarters of one percent (3/4%) for the
first three years of the term of the Term Note and seven-eighths
of one percent (7/8%) for the next four years of the term of the
Term Note plus (ii) the secondary Certificate of Deposit rate for
a maturity of 90 days as recorded by the New York Federal Reserve
Bank (212/791-6693), adjusted for current bank reserve
requirements and Federal Deposit Insurance Corporation insurance
for Certificates of Deposit in excess of $100,000 (the "90-day
C.D. Rate").
Interest is payable quarterly in arrears on the first
business day of each January, April, July and October and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Immediately after the Term Note is
executed, but in no event later than April 1, 1997, the Bank's
commitment under the Interim Note shall terminate.
Interest on the Term Note after default shall be at One
Hundred Fifty Percent (150%) of the Prime Rate not to exceed the
highest rate permitted by applicable law. The Prime Rate as used
herein and in the Term Note refers to that interest rate set by
the Bank from time to time as an interest rate basis for
borrowings. The Prime Rate is one of several interest rate bases
used by the Bank. The Bank lends at rates above and below the
Prime Rate.
Interest paid under this Note may be refunded to Borrower as
provided in Section 3 of the Loan Agreement (as herein defined),
which is incorporated herein by reference.
The principal of this Note ("Term Note") shall be paid in
twenty-eight (28) consecutive and equal quarterly installments,
each in the amount of _______________. The first such
installment shall be due on the first business day of __________,
1997, and a like amount on the first business day of each quarter
thereafter until the _____ day of __________, 2004, when the
final installment will be paid.
The terms and conditions contained in an Amended and
Restated Revolving and Term Loan Agreement dated March 31, 1994
by and between the Borrower and the Bank (the "Loan Agreement"),
are incorporated herein by reference and shall be considered a
part hereof to the same extent as if written herein. All
capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Loan Agreement.
In addition to the provisions relating to occurrences of
other Events of Default set forth in the Loan Agreement, upon (i)
non-payment when due, whether by acceleration or otherwise, of
any principal installment or (ii) non-payment, within ten (10)
days after the due date thereof, of interest or of any premium,
fee or other charge under the Loan Agreement, the entire
principal and any accrued interest under this Term Note (and any
other outstanding Note as defined in the Loan Agreement) shall,
at the option of the holder hereof, become immediately due and
payable without presentation, demand, protest, or notice of any
kind, all of which are expressly waived, and Borrower shall pay
to the Bank reasonable attorneys' fees in connection with such
default or recourse against any collateral held by the Bank as
security for the Borrower's indebtedness.
All parties to this Term Note, including endorsers, sureties
and guarantors, if any, hereby waive presentment for payment,
demand, protest, notice of non-payment or dishonor, and of
protest, and any and all other notices and demands whatsoever,
and agree to remain bound until the interest and principal are
paid in full notwithstanding any extension or extensions of time
for payment which may be granted, even though the period of
extension may be indefinite, and notwithstanding any inaction by,
or failure to assert any legal right available to the holder of
this Term Note.
IN WITNESS WHEREOF, the Borrower has caused this instrument
to be executed in its corporate name and its seal affixed hereto
by its duly authorized officers pursuant to a resolution of its
Board of Directors, or an appropriate committee thereof, duly
adopted.
RUDDICK CORPORATION
By:________________________________
Vice President
(SEAL OF RUDDICK CORPORATION)
ATTEST:
By:_________________________
Secretary
EXHIBIT C
Opinion of Smith Helms Mulliss & Moore, L.L.P.
1. Each of the Borrower and American & Efird, Inc., Harris
Teeter, Inc., Jordan Graphics, Inc. and R. S. Dickson & Co.
(each, a "Major Subsidiary") is a corporation duly organized,
existing and in good standing under the laws of the State of
North Carolina and has the corporate power to own its properties
and to carry on its business as now being conducted. To the best
of our knowledge after due inquiry, the Borrower is not engaged
in any activity that would require it to qualify to do business
in any jurisdiction other than North Carolina. While we have not
made any inquiry of governmental officials in any jurisdiction
other than North Carolina, we have no reason to believe that any
of the Major Subsidiaries as of the date hereof has failed to
qualify to do business in any foreign jurisdiction where the
failure to qualify would have a materially adverse effect on the
consolidated financial condition of the Borrower and its
subsidiaries, or that any of the Major Subsidiaries is not in
good standing in each jurisdiction where it is so qualified.
2. The Borrower is duly authorized under all applicable
provisions of law to execute and deliver the Agreement and the
Notes and all corporate action on its part required for the
lawful execution, delivery and performance thereof has been duly
taken; and the Interim Note has been duly executed and delivered
by the proper officers of the Borrower and upon receipt by the
Borrower of the loan evidenced thereby will be entitled to the
benefits of the Agreement; and the Agreement and the Interim Note
are the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their terms, subject as to
enforcement of remedies to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right to
specific enforcement of remedies, and further subject to the
application of principles of public policy.
3. Neither the execution, creation or issuance of the
Agreement or the Notes, nor the fulfillment of or compliance with
their terms, will conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a violation of
or default under, any applicable law, regulation, or writ or
decree or the Articles of Incorporation or Bylaws of the Borrower
or any of the Major Subsidiaries as of the date hereof, or, to
our knowledge, any agreement or instrument to which the Borrower
or any Major Subsidiary is a party, or, to our knowledge, create
any lien, charge or encumbrance upon any of the property or
assets of the Borrower or any Major Subsidiary pursuant to the
terms of any agreement or instrument to which the Borrower or any
Major Subsidiary is a party or by which they are bound.
4. No authorization, approval or consent of any regulatory
body is necessary or required in connection with the lawful
execution, delivery and performance of the Agreement or the Notes
which has not been obtained.
AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
THIS AGREEMENT, amended and restated as of this 31st day of
March, 1994 (the "Agreement") by and between RUDDICK CORPORATION,
a North Carolina corporation (herein called the "Borrower") and
WACHOVIA BANK OF NORTH CAROLINA, N.A. (the "Bank");
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank previously entered into a
Term Loan Agreement dated as of June 27, 1984, amended by (i) an
Amendment Agreement dated May 31, 1985 by and between the
Borrower and the Bank, (ii) a 1987 Amendment Agreement dated
July 1, 1987 by and between the Borrower and the Bank, (iii) a
1988 Amendment Agreement dated as of May 5, 1988 by and between
the Borrower and the Bank, (iv) a 1991 Amendment Agreement dated
as of March 27, 1991 by and between the Borrower and the Bank,
and (v) a 1992 Amendment Agreement dated as of April 23, 1992 by
and between the Borrower and the Bank (as so amended, the "1984
Loan Agreement"), pursuant to which the Bank has agreed to make
loans aggregating $15,000,000 (the "1991 Committed Amount") to
the Borrower, which loans currently are evidenced by the
Borrower's interim note dated March 27, 1991 (the "1991 Interim
Note"); and
WHEREAS, pursuant to the terms of the 1984 Loan Agreement
and the 1991 Interim Note, the Borrower could elect, not later
than April 1, 1994, to convert the outstanding principal amount
under the 1991 Interim Note to a term note due seven years after
the date thereof; and
WHEREAS, the Borrower has requested that the 1991 Committed
Amount under the 1984 Loan Agreement and the principal amount of
the 1991 Interim Note be increased to $20,000,000, and that the
period during which it can elect to convert the outstanding
principal amount under the 1991 Interim Note to the term note in
accordance with the terms of the 1984 Loan Agreement be extended
to April 1, 1997; and
WHEREAS, the Borrower and the Bank desire to amend and
restate the 1984 Loan Agreement in its entirety to reflect these
changes and certain other amendments;
NOW, THEREFORE, in consideration of the mutual covenants,
promises and conditions herein set forth, the Borrower and the
Bank hereby agree as follows:
1. The Revolving Loan.
(a) Commitment to Lend. Subject to the terms and
conditions of this Agreement, the Bank agrees to make a loan to
the Borrower, at any time and from time to time on or before
April 1, 1997, in a principal amount not in excess at any time of
$20,000,000 (the "Committed Amount", which Committed Amount is a
portion of aggregate financing commitments of $60,000,000 ("Total
Commitments") from the Bank, NationsBank of North Carolina,
National Association and First Union National Bank of North
Carolina (collectively, the "Banks")), provided that Borrower
shall give the Bank prior notice, by telephone to the Bank
representative indicated in Section 11(a) hereof, with respect to
each and every such borrowing. Prior to April 1, 1997, the
Borrower may use the Committed Amount by borrowing, paying and
reborrowing such amount, all in accordance with the terms and
conditions of this Agreement.
Borrower agrees to borrow, pay and reborrow in amounts from
the Banks on a pro rata basis as determined by each Bank's
Committed Amount in relation to Total Commitments. Each
borrowing from the Banks shall be in an aggregate amount of not
less than $100,000 or a multiple thereof, to be shared by the
Banks pro rata.
(b) The Interim Note. On or before the date of the first
borrowing hereunder, Borrower shall execute and deliver to the
Bank a promissory note (the "Interim Note") in the principal
amount of $20,000,000, dated as of the date of this Agreement and
payable in full three years after the date hereof, in form and
substance substantially similar to the attached Exhibit "A". The
Bank or subsequent holder is hereby authorized by the Borrower
and agrees to set forth on the reverse side of the Interim Note
issued to the Bank the amount of each interim loan made by it and
repayment made by the Borrower. Upon receipt of the Interim Note
of even date herewith, the Bank agrees to mark "cancelled" on the
face of the 1991 Interim Note and to release said 1991 Interim
Note to Borrower.
(c) Interest. The Interim Note issued to the Bank shall
bear interest on the unpaid principal amount outstanding from
time to time at a rate per annum equal to five-eighths of one
percent (5/8%) above the secondary Certificate of Deposit rate
for a maturity of 90 days as recorded by the New York Federal
Reserve Bank (212/791-6693) adjusted for current bank reserve
requirements and Federal Deposit Insurance Corporation insurance
for Certificates of Deposit in excess of $100,000 (the "90-day
C.D. Rate"). Interest is payable quarterly in arrears and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Any change in the interest rate
resulting from a change in the 90-day C.D. Rate shall become
effective as of the opening of business on the date of such
change in the interest rate caused by a change in the 90-day C.D.
Rate. The interest due dates shall be the first business day of
each January, April, July and October of each year beginning with
the first business day of July, 1994. Interest on the Interim
Note after default shall be one hundred fifty percent (150%) of
the Prime Rate, not to exceed the highest rate permitted by
applicable law. The Prime Rate as used herein and in the Interim
Note and the Term Note (hereinafter defined) refers to that
interest rate set by the Bank from time to time as an interest
rate basis for borrowings. The Prime Rate is one of several
interest rate bases used by the Bank. The Bank lends at rates
above and below the Prime Rate.
(d) Repayments. Each repayment to the Banks shall be in an
aggregate amount of not less than $100,000 or a multiple thereof,
each such repayment to be shared on a pro rata basis by the Banks
as determined by each Bank's Committed Amount in relation to
Total Commitments, provided that Borrower shall give the Banks
not less than forty-eight (48) hours prior notice, by telephone
to the Bank Representative indicated in Section 11(a) hereof,
with respect to each and every such repayment.
2. The Optional Term Loan.
(a) Commitment to Lend. Subject to the terms and
conditions of this Agreement, at any time up to April 1, 1997,
Borrower, at its election, may convert an amount up to the
Committed Amount into a seven-year term loan, and the Bank hereby
agrees to extend such term loan upon the terms and conditions
hereinafter provided.
(b) The Term Note. On or before the date the Borrower
elects to convert an amount up to the Committed Amount into a
term loan as provided above, the Borrower shall execute and
deliver to the Bank a seven-year term note (the "Term Note") in
the principal amount of the indebtedness Borrower elects to incur
on a term basis, dated the date Borrower elects to convert, in
form and substance substantially similar to the attached Exhibit
"B", with blanks appropriately completed. The Term Note shall be
payable in twenty-eight equal, consecutive quarterly
installments, on the first business day of each January, April,
July and October, beginning with the first such date occurring
after the date of the Term Note.
(c) Interest. The Term Note issued to each Bank shall bear
interest at a rate per annum equal to the sum of (i) three-
quarters of one percent (3/4%) for the first three years of the
term of the Term Note and seven-eighths of one percent (7/8%) for
the next four years on the term of the Term Note plus (ii) the
90-day C.D. Rate as reflected on the first business day of each
calendar quarter.
Interest is payable quarterly in arrears on the first
business day of each January, April, July and October beginning
on the first such date after the date of the Term Note and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Immediately after the Term Note is
executed, but in no event later than April 1, 1997, the Bank's
commitment to make loans under the Interim Note shall terminate.
Interest on the Term Note after default shall be at One
Hundred Fifty Percent (150%) of the Prime Rate, not to exceed the
highest rate permitted by applicable law.
(d) Prepayment of the Term Note.
On the first business day of any January, April, July or
October the Borrower may prepay all or any portion of the
indebtedness evidenced by the Term Note without penalty or fee,
provided that each prepayment to the Banks shall be in an
aggregate amount of not less than $100,000 or a multiple thereof,
with accrued interest on the prepaid principal to the date of
prepayment, each prepayment to be shared on a pro rata basis by
the Banks as determined by each Bank's Committed Amount in
relation to Total Commitments, and provided further that Borrower
shall give the Banks not less than forty-eight (48) hours prior
notice, by telephone to the Bank Representative indicated in
Section 11(a) hereof, with respect to each and every such
prepayment. Any prepayment shall be applied to the then last
maturing installment of principal.
3. Refund of Interest.
On April 1, 1997, the total interest paid under the Notes
(as hereinafter defined) from April 1, 1994 shall be refunded to
Borrower to the extent such interest exceeds 14% per annum on the
amounts outstanding from time to time under the Notes for such
three-year period.
On April 1, 2000, the total interest paid under the Term
Note from April 1, 1997 shall be refunded to Borrower to the
extent such interest exceeds 15% per annum on the amounts
outstanding from time to time under the Term Note for such three-
year period.
4. Commitment Fee.
(a) Amount. Until the Borrower's option to borrow
hereunder has been fully exercised or Borrower has converted the
Interim Note to the Term Note, the Borrower will pay the Bank a
commitment fee of one-quarter of one percent (1/4%) per annum on
the daily average of the unused portion of the Bank's Committed
Amount hereunder, payable from the date hereof on the interest
due dates set out in the Interim Note in the form of Exhibit "A".
(b) Termination or Reduction of Committed Amount. So long
as the Interim Note is outstanding, Borrower shall have the right
from time to time upon not less than three (3) days' prior
written notice to the Banks to terminate, or to reduce, the Total
Commitments and the Bank's Committed Amount on a pro rata basis.
Any partial reduction shall be in an amount equal to 5% of Total
Commitments or any integral multiple thereof and shall reduce
permanently the Bank's Committed Amount as a pro rata share of
Total Commitments. Each reduction shall be accompanied by a
prepayment of the Interim Note (together with accrued interest
thereon) to the extent that the principal amount thereof then
outstanding exceeds the Committed Amount as so reduced.
5. Representations and Warranties. In borrowing
hereunder, the Borrower represents and warrants to the Bank,
which representations and warranties will survive the delivery of
the Notes (which term shall include the Interim Note and the Term
Note provided for herein), and the making of the loans hereunder,
as follows:
(a) Due Incorporation, Etc. The Borrower and each
Restricted Subsidiary (as defined in that certain Loan
Agreement dated April 23, 1992 by and among the Borrower and
the Banks (the "1992 Term Loan Agreement")) is a corporation
duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is incorporated,
and has the corporate power and legal authority to own its
property and to carry on its business as now being conducted
and is duly qualified to transact business as a foreign
corporation in every jurisdiction where such qualification
is necessary. The Borrower has the corporate power to
execute and perform this Agreement, to borrow hereunder and
to execute and deliver the Notes, and to do so will not
violate its Articles of Incorporation or Bylaws, any law to
which it is subject, or any agreement or instrument to which
it is a party.
(b) Litigation. Except as set forth in the financial
statements described in Section 5(c) hereof, there is no
litigation or proceeding pending or, to the knowledge of the
Borrower, threatened which, if decided adversely to the
Borrower or any subsidiary, would have a material adverse
effect upon the financial condition or business of the
Borrower and its subsidiaries, taken as a whole.
(c) Financial Condition. The Consolidated Balance
Sheet of the Borrower and its subsidiaries as at October 3,
1993 and the related Statements of Consolidated Income and
Retained Earnings and Statements of Cash Flows of the
Borrower and its subsidiaries for the fiscal year then
ended, all of which have been delivered to the Bank prior to
the execution of this Agreement, are correct and complete
and fairly present the financial condition of the Borrower
and its subsidiaries and the results of their operations and
their retained earnings as of the dates and for the periods
referred to. The consolidated balance sheets of the
Borrower and its subsidiaries as at January 2, 1994 and the
related statements of consolidated income and retained
earnings and statements of consolidated cash flows for the
three-month period then ended, copies of which have been
furnished to the Bank, are true and correct and present
fairly, subject to normal recurring year-end adjustments,
the financial condition of the Borrower and its subsidiaries
as at such date and the results of their operations and
their retained earnings as of such date and for such period.
All financial statements have been prepared in accordance
with generally accepted accounting principles consistently
applied throughout the periods involved. Since January 2,
1994, no material adverse changes in the financial
condition, the business or operations of the Borrower and
its subsidiaries, taken as a whole, have occurred.
The real estate and other fixed assets of the Borrower
and its subsidiaries are subject to no mortgage or lien
securing an indebtedness of a material principal amount
except as shown in the balance sheets referred to above.
The Borrower and its subsidiaries have no liabilities,
direct or contingent, except those disclosed in the audit
report and interim statements referred to above, and except
those arising in the ordinary course of business since the
date of such audit report and interim statements, having in
the aggregate no materially adverse effect on the financial
condition of the Borrower and its subsidiaries, taken as a
whole. The Borrower and its subsidiaries have made no
investments in, advances to or guaranties of the obligations
of any corporation, individual or other entity other than
Borrower in an aggregate amount material to the consolidated
financial condition of the Borrower and its subsidiaries,
taken as a whole, except those disclosed in the financial
statements referred to above.
(d) Governmental Contracts. The Borrower and its
subsidiaries are not subject to the renegotiation of any
government contract in any material amount.
(e) Tax Returns. The Borrower and its subsidiaries
have filed all required federal, state, and local tax
returns and have paid all taxes as shown on such returns as
they have become due. Federal income tax returns have been
audited, or closed by the operation of applicable statutes
of limitation, through 1989, and no claims have been
assessed and are unpaid with respect to such taxes except as
shown in the audit report or interim financial statement
referred to in Section 5(c) above.
(f) Use of Proceeds. The proceeds of all borrowings
hereunder will be used for general corporate purposes and
for working capital.
6. Conditions to Closing.
(a). Conditions Precedent. The obligation of the Bank to
lend hereunder is subject to the following conditions precedent:
(1) Legal Opinion. On or before the date hereof, the
Bank shall have received the favorable written opinion of
Smith Helms Mulliss & Moore, L.L.P., counsel for the
Borrower, addressed to the Bank, and satisfactory in form
and substance to the Bank's counsel, substantially in the
form of Exhibit C attached hereto.
(2) Corporate Resolutions. The Bank shall have
received, on or before the date of the first borrowing
hereunder, (A) a copy of the resolutions of the Board of
Directors, or appropriate committee thereof, of the
Borrower, certified on such date, authorizing the execution
and delivery of this Agreement, the borrowing hereunder and
the execution and delivery of the Notes; and (B) such
additional documents as the Bank or counsel for the Bank may
reasonably request.
(3) Representations and Warranties. On the date of
any borrowing hereunder, the representations and warranties
set forth in Section 5 hereof shall be true and correct on
and as of such date with the same effect as though such
representations and warranties had been made on and as of
such date.
(4) Due Compliance. At the time of each borrowing
hereunder, the Borrower and each subsidiary shall be in
compliance with all of the terms and provisions set forth
herein on their part to be observed and performed, and no
Event of Default as specified in Section 10 below, nor any
event which upon notice or lapse of time, or both, would
constitute such an Event of Default, shall have occurred at
the time of such borrowing.
(b) Covenant and Condition Subsequent. The Borrower shall
deliver to the Bank, not more than ninety (90) days after the
date of the first borrowing hereunder, (1) such collateral or
evidence of the priority of the Bank's position as a creditor,
all in form and substance satisfactory to the Bank; and (2) such
additional documents as the Bank or counsel for the Bank may
reasonably request.
7. Covenants. The Borrower covenants and agrees that from
the date hereof and until payment in full of the principal and
interest on the Notes, unless the Bank shall otherwise consent in
writing, the Borrower will duly comply with all provisions and
terms of Sections 5 and 6 of the 1992 Term Loan Agreement, and
the same are hereby incorporated herein with the same force and
effect as if they were expressly set out herein, regardless of
whether the indebtedness issued thereunder shall have been
satisfied. The Bank and the Borrower confirm that the current
level of Consolidated Tangible Net Worth (as defined in the 1992
Term Loan Agreement) to be maintained during Fiscal Year (as
defined in the 1992 Term Loan Agreement) 1994 is $225,865,000.
Borrower will not, without the written consent of the Bank, enter
into any agreement that would substantially or materially alter,
amend, or grant to it or any subsidiary a waiver of any provision
of the 1992 Term Loan Agreement. Borrower will deliver to the
Bank a certificate dated the closing date and signed by the
President or a Vice President and the Treasurer or an Assistant
Treasurer of the Borrower certifying that, after giving effect to
the loan hereunder the Borrower is in compliance with the
restrictions contained in the 1992 Term Loan Agreement.
8. Opinions and Notice of Other Default.
The Borrower shall furnish at the reasonable request of the
Bank opinions of legal counsel and certificates of its officers,
satisfactory to the Bank, regarding matters incident to this
Agreement. In addition, the Borrower shall give the Bank prompt
written notice of the occurrence of any Event of Default under
the terms of this Agreement and of a default or failure of
performance under any other agreement or contract to which it is
a party or by which it is bound.
9. Documentary Stamps.
If any documentary or recording tax should be assessed or
the affixing of any stamps be required in connection with the
borrowing hereunder or the security therefor, by state or federal
governments, the Borrower will pay the tax and the cost of the
stamps.
10. Default.
The occurrence of any one or more of the following Events of
Default will constitute a default by the Borrower under this
Agreement, whereupon the Notes and all indebtedness of the
Borrower to the Bank will, at the option of the Bank, immediately
become due and payable without presentation, demand, protest, or
notice of any kind, all of which are hereby expressly waived, and
the Borrower will pay the reasonable attorney's fees incurred by
the Bank in connection with such default or recourse against any
collateral held by the Bank as security for the indebtedness owed
by the Borrower:
(a) Non-payment when due, whether by acceleration or
otherwise, of any principal payment on either of the Notes;
(b) Non-payment, within ten days after the due date,
of interest on either of the Notes, or of any premium, fee
or other charge under this Agreement;
(c) A breach or failure of performance by the Borrower
or any subsidiary of any provision of this Agreement which
is not remedied within 30 days after written notice from the
Bank;
(d) A representation or warranty by the Borrower is
false or erroneous in any material respect on the date as of
which made;
(e) Borrower or a Restricted Subsidiary: (i) files a
petition or has a petition filed against it under the
Bankruptcy Code or any proceeding for the relief of
insolvent debtors; (ii) generally fails to pay its debts as
such debts become due; (iii) has a custodian appointed for
it or its assets; (iv) benefits from or is subject to the
entry of an order for relief by any court of insolvency; (v)
makes an admission of insolvency seeking the relief provided
in the Bankruptcy Code or any other insolvency law; (vi)
makes an assignment for the benefit of creditors; (vii) has
a receiver appointed, voluntarily or otherwise, for its
property; (viii) suspends business; (ix) permits a judgment
in the amount of $250,000 or more to be obtained against it
which is not promptly paid or promptly appealed and secured
pending appeal; or (x) becomes insolvent, however otherwise
evidenced;
(f) Failure by Borrower or a Restricted Subsidiary to
pay when due, or within any applicable grace period, any
amount owing on account of indebtedness for money borrowed
or the failure by Borrower or a Restricted Subsidiary to
observe or perform any covenant or undertaking on its part
to be observed or performed in any agreement evidencing,
securing or relating to such indebtedness, resulting in any
such case in an event of default or acceleration by the
holder of such indebtedness of the date on which such
indebtedness would otherwise be due and payable; or
(g) If there occurs a change in control of the
Borrower as defined in Section 7.01(h) of the 1992 Term Loan
Agreement.
11. General.
(a) All notices with respect to this Agreement shall
be deemed to be completed upon mailing first class,
certified or registered mail, postage prepaid, addressed as
follows or to such other address as the parties hereto shall
have been notified:
The Borrower: Ruddick Corporation
2000 Two First Union Center
Charlotte, North Carolina 28282
Attention: Vice President-Finance
The Bank: Wachovia Bank of North Carolina, N.A.
Post Office Box 31608
Charlotte, North Carolina 28231
Attention: Kenneth R. Smith
(b) No failure or delay by the Bank to exercise any
right, power or privilege hereunder shall operate as a
waiver of any such right, power or privilege, nor shall any
single or partial exercise of any right, power or privilege
preclude any other or future exercise thereof. The rights
and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
(c) The provisions of this Agreement shall extend to
and be available to any subsequent holder of the Notes, as
well as to the Bank.
(d) The Agreement and the Notes shall be deemed to be
contracts made under, and for all purposes shall be
construed in accordance with, the laws of the State of North
Carolina.
12. Restatement.
This Agreement amends, restates and supersedes the 1984 Loan
Agreement in its entirety, and such 1984 Loan Agreement shall be
of no further force or effect.
[Signatures appear on following page]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the year and day first above
written.
ATTEST: RUDDICK CORPORATION
\s\ D.B. Williford By:\s\ Richard N. Brigden
Secretary Richard N. Brigden
Vice President-Finance
(Corporate Seal)
WACHOVIA BANK OF NORTH CAROLINA,
N.A.
By:\s\ Kenneth R. Smith, Jr.
Senior Vice President
<PAGE>
EXHIBIT A
RUDDICK CORPORATION
INTERIM NOTE
March 31, 1994 $20,000,000
For value received, RUDDICK CORPORATION (the "Borrower")
promises to pay to the order of WACHOVIA BANK OF NORTH CAROLINA,
N.A. (the "Bank") at its main office in Charlotte, North
Carolina, the amount of the unpaid principal balance, not
exceeding $20,000,000, specified on the reverse hereof in
accordance with Section 1 of the Loan Agreement (as herein
defined), and to pay interest at said office, from the date
hereof on the unpaid principal balance owing hereunder from time
to time at a rate of five-eighths of one percent (5/8%) above the
secondary Certificate of Deposit rate for a maturity of 90 days
as recorded by the New York Federal Reserve Bank (212/791-6693),
adjusted for current bank reserve requirements and Federal
Deposit Insurance Corporation insurance for Certificates of
Deposit in excess of $100,000 (the "90-day C.D. Rate"). Interest
is payable quarterly in arrears and is computed on the basis of a
360-day year for the actual number of days in each interest
period. Any change in the interest rate resulting from a change
in the 90-day C.D. Rate shall become effective as of the opening
of business on the date of such change in the interest rate
caused by a change in the 90-day C.D. Rate. The interest due
dates shall be the first business day of each January, April,
July and October of each year beginning the first business day of
July 1994. Interest on the Interim Note after default shall be
one hundred fifty percent (150%) of the Prime Rate, not to exceed
the highest rate permitted by applicable law. The Prime Rate as
used herein refers to that interest rate set by the Bank from
time to time as an interest rate basis for borrowings. The Prime
Rate is one of several interest rate bases used by the Bank. The
Bank lends at rates above and below the Prime Rate. Interest
paid under this Note may be refunded to Borrower as provided in
Section 3 of the Loan Agreement (as herein defined), which is
incorporated herein by reference.
This Note ("Interim Note") represents an interim borrowing
under an Amended and Restated Revolving and Term Loan Agreement
dated as of the date hereof by and between the Borrower and the
Bank (the "Loan Agreement"), and the terms and conditions set
forth in the Loan Agreement are incorporated herein by reference
and shall be considered a part hereof to the same extent as if
written herein. All capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the
Loan Agreement.
In addition to the provisions relating to occurrences of
other Events of Default set forth in the Loan Agreement, upon (i)
non-payment when due, whether by acceleration or otherwise, of
the principal or (ii) non-payment, within ten (10) days after the
due date thereof, of interest or of any premium, fee or other
charge under the Loan Agreement, the entire principal and any
accrued interest under this Interim Note shall, at the option of
the holder hereof, become immediately due and payable without
presentation, demand, protest, or notice of any kind, all of
which are hereby expressly waived, and Borrower shall pay to the
Bank reasonable attorneys' fees in connection with such default
or recourse against any collateral held by the Bank as security
for the Borrower's indebtedness.
Not later than April 1, 1997, Borrower may elect to convert
the remaining outstanding principal amount of this Note to a Term
Note as provided for in Section 2 of the Loan Agreement.
All parties to this Interim Note, including endorsers,
sureties and guarantors, if any, hereby waive presentment for
payment, demand, protest, notice of non-payment or dishonor, and
of protest, and any and all other notices and demands whatsoever,
and agree to remain bound until the interest and principal are
paid in full notwithstanding any extension or extensions of time
for payment which may be granted even though the period of
extension may be indefinite, and notwithstanding any inaction by,
or failure to assert any legal right available to, the holder of
this Note.
IN WITNESS WHEREOF, Borrower has caused this instrument to
be executed in its corporate name and its seal affixed hereto by
its duly authorized officers pursuant to a resolution of its
Board of Directors, or appropriate committee thereof, duly
adopted.
RUDDICK CORPORATION
By:________________________________
Richard N. Brigden
Vice President-Finance
(SEAL OF RUDDICK CORPORATION)
ATTEST:
By:_________________________
Secretary
<PAGE>
EXHIBIT B
RUDDICK CORPORATION
TERM NOTE
_________________________ $__________
For value received, RUDDICK CORPORATION (the "Borrower")
promises to pay to the order of __________________________ (the
"Bank") at its main office in Charlotte, North Carolina, the
principal sum of ____________________ Dollars ($__________) with
interest upon unpaid principal from the date hereof payable in
arrears on each principal payment date at a rate per annum equal
to the sum of (i) three-quarters of one percent (3/4%) for the
first three years of the term of the Term Note and seven-eighths
of one percent (7/8%) for the next four years of the term of the
Term Note plus (ii) the secondary Certificate of Deposit rate for
a maturity of 90 days as recorded by the New York Federal Reserve
Bank (212/791-6693), adjusted for current bank reserve
requirements and Federal Deposit Insurance Corporation insurance
for Certificates of Deposit in excess of $100,000 (the "90-day
C.D. Rate").
Interest is payable quarterly in arrears on the first
business day of each January, April, July and October and is
computed on the basis of a 360-day year for the actual number of
days in each interest period. Immediately after the Term Note is
executed, but in no event later than April 1, 1997, the Bank's
commitment under the Interim Note shall terminate.
Interest on the Term Note after default shall be at One
Hundred Fifty Percent (150%) of the Prime Rate not to exceed the
highest rate permitted by applicable law. The Prime Rate as used
herein and in the Term Note refers to that interest rate set by
the Bank from time to time as an interest rate basis for
borrowings. The Prime Rate is one of several interest rate bases
used by the Bank. The Bank lends at rates above and below the
Prime Rate.
Interest paid under this Note may be refunded to Borrower as
provided in Section 3 of the Loan Agreement (as herein defined),
which is incorporated herein by reference.
The principal of this Note ("Term Note") shall be paid in
twenty-eight (28) consecutive and equal quarterly installments,
each in the amount of _______________. The first such
installment shall be due on the first business day of __________,
1997, and a like amount on the first business day of each quarter
thereafter until the _____ day of __________, 2004, when the
final installment will be paid.
The terms and conditions contained in an Amended and
Restated Revolving and Term Loan Agreement dated March 31, 1994
by and between the Borrower and the Bank (the "Loan Agreement"),
are incorporated herein by reference and shall be considered a
part hereof to the same extent as if written herein. All
capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Loan Agreement.
In addition to the provisions relating to occurrences of
other Events of Default set forth in the Loan Agreement, upon (i)
non-payment when due, whether by acceleration or otherwise, of
any principal installment or (ii) non-payment, within ten (10)
days after the due date thereof, of interest or of any premium,
fee or other charge under the Loan Agreement, the entire
principal and any accrued interest under this Term Note (and any
other outstanding Note as defined in the Loan Agreement) shall,
at the option of the holder hereof, become immediately due and
payable without presentation, demand, protest, or notice of any
kind, all of which are expressly waived, and Borrower shall pay
to the Bank reasonable attorneys' fees in connection with such
default or recourse against any collateral held by the Bank as
security for the Borrower's indebtedness.
All parties to this Term Note, including endorsers, sureties
and guarantors, if any, hereby waive presentment for payment,
demand, protest, notice of non-payment or dishonor, and of
protest, and any and all other notices and demands whatsoever,
and agree to remain bound until the interest and principal are
paid in full notwithstanding any extension or extensions of time
for payment which may be granted, even though the period of
extension may be indefinite, and notwithstanding any inaction by,
or failure to assert any legal right available to the holder of
this Term Note.
IN WITNESS WHEREOF, the Borrower has caused this instrument
to be executed in its corporate name and its seal affixed hereto
by its duly authorized officers pursuant to a resolution of its
Board of Directors, or an appropriate committee thereof, duly
adopted.
RUDDICK CORPORATION
By:________________________________
Vice President
(SEAL OF RUDDICK CORPORATION)
ATTEST:
By:_________________________
Secretary
EXHIBIT C
Opinion of Smith Helms Mulliss & Moore, L.L.P.
1. Each of the Borrower and American & Efird, Inc., Harris
Teeter, Inc., Jordan Graphics, Inc. and R. S. Dickson & Co.
(each, a "Major Subsidiary") is a corporation duly organized,
existing and in good standing under the laws of the State of
North Carolina and has the corporate power to own its properties
and to carry on its business as now being conducted. To the best
of our knowledge after due inquiry, the Borrower is not engaged
in any activity that would require it to qualify to do business
in any jurisdiction other than North Carolina. While we have not
made any inquiry of governmental officials in any jurisdiction
other than North Carolina, we have no reason to believe that any
of the Major Subsidiaries as of the date hereof has failed to
qualify to do business in any foreign jurisdiction where the
failure to qualify would have a materially adverse effect on the
consolidated financial condition of the Borrower and its
subsidiaries, or that any of the Major Subsidiaries is not in
good standing in each jurisdiction where it is so qualified.
2. The Borrower is duly authorized under all applicable
provisions of law to execute and deliver the Agreement and the
Notes and all corporate action on its part required for the
lawful execution, delivery and performance thereof has been duly
taken; and the Interim Note has been duly executed and delivered
by the proper officers of the Borrower and upon receipt by the
Borrower of the loan evidenced thereby will be entitled to the
benefits of the Agreement; and the Agreement and the Interim Note
are the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their terms, subject as to
enforcement of remedies to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right to
specific enforcement of remedies, and further subject to the
application of principles of public policy.
3. Neither the execution, creation or issuance of the
Agreement or the Notes, nor the fulfillment of or compliance with
their terms, will conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a violation of
or default under, any applicable law, regulation, or writ or
decree or the Articles of Incorporation or Bylaws of the Borrower
or any of the Major Subsidiaries as of the date hereof, or, to
our knowledge, any agreement or instrument to which the Borrower
or any Major Subsidiary is a party, or, to our knowledge, create
any lien, charge or encumbrance upon any of the property or
assets of the Borrower or any Major Subsidiary pursuant to the
terms of any agreement or instrument to which the Borrower or any
Major Subsidiary is a party or by which they are bound.
4. No authorization, approval or consent of any regulatory
body is necessary or required in connection with the lawful
execution, delivery and performance of the Agreement or the Notes
which has not been obtained.
RUDDICK CORPORATION EXHIBIT 11
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
SIX MONTHS ENDED
April 3, March 28,
1994 1993
NET INCOME PER SHARE COMPUTED
AS FOLLOWS:
PRIMARY:
1. Net Income $ 13,709,000 $ 19,892,000
2. Weighted Average Common
Shares Outstanding 23,072,742 23,109,501
3. Incremental Shares Relating
to $.56 Convertible
Preference Shares 366,725 409,169
4. Incremental Shares Under Stock
Options Computed Under the
Treasury Stock
Method Using the Average
Market Price of Issuer's
Stock During the Periods 280,720 341,420
5. Weighted Average Common
Shares and Common Equivalent
Shares Outstanding 23,720,187 23,860,090
6. Net Income Per Share
(Item 1 Divided by Item 5) $ 0.58 0.83
FULLY DILUTED:
1. Net Income $ 13,709,000 $ 19,892,000
2. Weighted Average Common
Shares Outstanding 23,072,742 23,109,501
3. Incremental Shares Relating
to $.56 Convertible Preference
Shares 366,725 409,169
4. Incremental Shares Under Stock
Options Computed Under the
Treasury Stock Method Using
the Higher of the Average or
Ending Market Price of
Issuer's Stock at the End
of the Periods 280,978 383,412
5. Weighted Average Common Shares
and Common Equivalent Shares
Outstanding 23,720,445 23,902,082
6. Net Income Per Share
(Item 1 Divided by Item 5) $ 0.58 $ 0.83
