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 June 29, 1997
---------------
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)
(704) 372-5404
--------------------------------------------------
Registrant's telephone number, including area code
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
Class As of August 1, 1997
------------ --------------------
Common Stock 46,575,301 shares
RUDDICK CORPORATION
INDEX
PAGE NO.
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED CONDENSED BALANCE SHEETS -
JUNE 29, 1997 AND SEPTEMBER 29, 1996 2
CONSOLIDATED CONDENSED STATEMENTS OF
INCOME - THREE MONTHS AND NINE MONTHS
ENDED JUNE 29, 1997 AND JUNE 30, 1996 3
CONSOLIDATED CONDENSED STATEMENTS OF
CASH FLOWS - NINE MONTHS ENDED
JUNE 29, 1997 AND JUNE 30, 1996 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 6. EXHIBITS AND REPORTS ON FORM 8-K 10
SIGNATURES 10
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RUDDICK CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(in thousands)
June 29, September 29,
ASSETS 1997 1996
------ (Unaudited) (Unaudited)
----------- -------------
CURRENT ASSETS:
Cash and Temporary Cash Investments $ 14,336 $ 21,033
Accounts Receivable, Net 75,683 70,809
Inventories 197,698 183,649
Other 30,082 22,569
Net Assets of Discontinued Operations 413
--------- ---------
Total Current Assets 317,799 298,473
PROPERTY, NET 455,711 410,567
INVESTMENTS AND OTHER ASSETS 91,638 92,662
--------- ---------
Total $ 865,148 $ 801,702
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES:
Notes Payable $ 8,954 $ 7,118
Current Portion of Long-Term Debt 5,230 5,247
Accounts Payable 132,441 138,032
Income Taxes Payable 3,609 1,945
Other Accrued Liabilities 70,716 80,997
--------- ---------
Total Current Liabilities 220,950 233,339
LONG-TERM DEBT 200,569 159,188
DEFERRED LIABILITIES 66,928 62,319
MINORITY INTEREST 4,407 -
SHAREHOLDERS' EQUITY:
Capital Stock - Common 56,450 55,599
Retained Earnings 318,320 293,654
Cumulative Translation Adjustments (2,476) (2,397)
--------- --------
Shareholders' Equity 372,294 346,856
---------- ---------
Total $ 865,148 $ 801,702
========== =========
2
RUDDICK CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands, except share and per share data)
THREE MONTHS ENDED
---------------------------
June 29, June 30,
1997 1996
(Unaudited) (Unaudited)
----------- -----------
NET SALES
American & Efird $ 95,311 $ 78,477
Harris Teeter 484,436 454,074
----------- -----------
Total 579,747 532,551
----------- -----------
OPERATING PROFIT
American & Efird 14,066 11,234
Harris Teeter 11,382 14,074
----------- -----------
Total 25,448 25,308
----------- -----------
OTHER COSTS AND DEDUCTIONS
Interest expense, net 3,928 2,961
Other expense, net 1,830 2,882
Minority interest 329 -
----------- -----------
Total 6,087 5,843
----------- -----------
Income from continuing operations
before income taxes 19,361 19,465
Income taxes 6,297 5,852
----------- -----------
Income from continuing operations 13,064 13,613
Income from discontinued
operations before income taxes - -
Less applicable income taxes - -
----------- -----------
Net Income $ 13,064 $ 13,613
=========== ===========
AVERAGE NUMBER OF SHARES
OF COMMON STOCK AND
COMMON STOCK EQUIVALENTS
OUTSTANDING:
Primary 46,870,418 46,702,716
Fully Diluted 46,870,418 46,702,924
NET INCOME PER SHARE -
PRIMARY AND FULLY DILUTED $.28 $.29
DIVIDENDS DECLARED PER SHARE -
Common $.08 $.07
RUDDICK CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands, except share and per share data)
NINE MONTHS ENDED
----------------------------
June 29, June 30,
1997 1996
(Unaudited) (Unaudited)
----------- -----------
NET SALES
American & Efird $ 273,362 $ 214,310
Harris Teeter 1,444,425 1,370,262
----------- -----------
Total 1,717,787 1,584,572
----------- -----------
OPERATING PROFIT
American & Efird 36,064 23,620
Harris Teeter 34,361 37,353
----------- -----------
Total 70,425 60,973
----------- -----------
OTHER COSTS AND DEDUCTIONS
Interest expense, net 10,602 9,047
Other expense, net 6,086 7,858
Minority interest 329 -
----------- -----------
Total 17,017 16,905
----------- -----------
Income from continuing operations
before income taxes 53,408 44,068
Income taxes 17,572 12,911
----------- -----------
Income from continuing operations 35,836 31,157
Income from discontinued
operations before income taxes - 123
Less applicable income taxes - (47)
----------- -----------
Net Income $ 35,836 $ 31,233
=========== ===========
AVERAGE NUMBER OF SHARES
OF COMMON STOCK AND
COMMON STOCK EQUIVALENTS
OUTSTANDING:
Primary 46,822,228 46,608,999
Fully Diluted 46,832,308 46,636,515
NET INCOME PER SHARE -
PRIMARY AND FULLY DILUTED $.77 $.67
DIVIDENDS DECLARED PER SHARE -
Common $.24 $.19
3
RUDDICK CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(in thousands)
NINE MONTHS ENDED
----------------------
June 29, June 30,
1997 1996
(Unaudited) (Unaudited)
----------- -----------
CASH FLOW FROM INCOME $ 88,605 $ 71,232
Decrease (Increase) in Current Assets (25,522) (15,078)
Increase (Decrease) in Current Liabilities (12,372) (19,110)
-------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 50,711 37,044
-------- --------
CASH PROVIDED BY DISCONTINUED ACTIVITIES 413 12,837
INVESTING ACTIVITIES
Purchase of Assets (96,717) (100,486)
Cash Proceeds from Sale of Assets 9,489 3,572
Company Owned Life Insurance, Net 831 (4,158)
Other, Net (2,356) 838
-------- --------
NET CASH USED IN INVESTING ACTIVITIES (88,753) (100,234)
-------- --------
FINANCING ACTIVITIES
Proceeds (Repayments) of Long-Term
Borrowings 56,150 56,300
Payment of Principal on Long-Term Debt (14,705) (6,705)
Dividends (11,170) (8,817)
Other, Net 657 1,101
-------- --------
NET CASH PROVIDED BY FINANCING ACTIVITIES 30,932 41,879
-------- --------
INCREASE (DECREASE) IN BALANCE SHEET CASH (6,697) (8,474)
BALANCE SHEET CASH AT BEGINNING OF PERIOD 21,033 18,959
-------- --------
BALANCE SHEET CASH AT END OF PERIOD $ 14,336 $ 10,485
======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash Paid During the Year for:
Interest $ 9,860 $ 8,701
Income Taxes $ 9,751 $ 5,924
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.
ON JANUARY 23, 1996, THE ASSETS OF THE BUSINESS FORMS SEGMENT
WERE SOLD UNDER A PLAN OF DISPOSITION ENTERED INTO DURING THE
FIRST FISCAL QUARTER ENDED DECEMBER 31, 1995. THE REVENUES OF
THE DISCONTINUED OPERATION WERE $14 MILLION FOR THE DECEMBER 31,
1995 QUARTER AND $17.3 MILLION FOR THE FISCAL YEAR TO THE DATE OF
THE SALE. OPERATING PROFIT FOR THAT PERIOD WAS $123 THOUSAND.
THE DISPOSITION WAS SUBSTANTIALLY COMPLETED DURING THE FISCAL
YEAR ENDED SEPTEMBER 29, 1996, AND HAD NO SIGNIFICANT IMPACT ON
CONSOLIDATED EARNINGS OR FINANCIAL CONDITION. THE BUSINESS FORMS
SEGMENT IS REPORTED AS DISCONTINUED OPERATIONS.
IN OCTOBER, 1995, THE FINANCIAL ACCOUNTING STANDARDS BOARD (FASB)
ISSUED STATEMENT NO. 123 WHICH WILL REQUIRE THAT THE COMPANY MAKE
CERTAIN ADDITIONAL DISCLOSURES RELATED TO THE GRANTS OF STOCK
OPTIONS TO ITS EMPLOYEES, SUCH DISCLOSURE REQUIREMENTS BEING
EFFECTIVE FOR THE FISCAL YEAR ENDING SEPTEMBER 28, 1997. AS
PERMITTED BY STATEMENT NO. 123, THE COMPANY INTENDS TO CONTINUE
TO APPLY FASB OPINION 25 IN ACCOUNTING FOR ITS STOCK-BASED
EMPLOYEE COMPENSATION ARRANGEMENTS AND TO ADOPT THE NEW
DISCLOSURE STANDARDS FOR PROFORMA NET INCOME AND EARNINGS PER
SHARE IN ITS ANNUAL FINANCIAL REPORTING. THE EFFECTS ON REPORTED
CONSOLIDATED EARNINGS OR THE FINANCIAL CONDITION OF THE COMPANY
ARE NOT EXPECTED TO BE MATERIAL.
5
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 operating subsidiaries for the
quarters and nine months ended June 29, 1997 and June 30, 1996:
(In Thousands) Quarter Ended Nine Months Ended
-------------------- ---------------------
June 29, June 30, June 29, June 30,
1997 1996 1997 1996
-------- -------- --------- --------
Net Sales
American & Efird $ 95,311 $ 78,477 $ 273,362 $ 214,310
Harris Teeter 484,436 454,074 1,444,425 1,370,262
-------- -------- ---------- ----------
Total $579,747 $532,551 $1,717,787 $1,584,572
-------- -------- ---------- ----------
Operating Profit
American & Efird $ 14,066 $ 11,234 $ 36,064 $ 23,620
Harris Teeter 11,382 14,074 34,361 37,353
-------- -------- ---------- ----------
Total $ 25,448 $ 25,308 $ 70,425 $ 60,973
-------- -------- ---------- ----------
For the Three Months Ended June 29, 1997 and June 30, 1996
----------------------------------------------------------
Consolidated sales of $580 million in the third quarter of
fiscal 1997 increased 9% over the $533 million reported for the
comparable period last year. Total operating profit of $25.4
million was about equal to last year. Net income after taxes of
$13.1 million declined 4% from the $13.6 million reported last
year.
Fully diluted and primary earnings per share were $.28 in
the third fiscal quarter of fiscal 1997 and compare to $.29 for
the comparable period last year.
In the third quarter of fiscal 1997, American & Efird sales
of $95.3 million increased 21% over the comparable period last
year. The prior year quarter included approximately one month of
sales to the Threads USA customer base acquired in the June, 1996
quarter. The sales increase was also driven by good market
conditions for industrial sewing thread in major domestic and
foreign markets of the Company. Although a relatively small
portion of A&E's total sales, export sales continued to grow as
A&E gained international market share. Strong sales allowed
manufacturing plants to operate on full, efficient schedules
which generated most of the increase in operating profit for the
quarter. Operating profit of $14.1 million improved 25% over the
comparable period last year. The renovation and upgrading of a
spinning plant which was acquired in the Threads USA acquisition
in fiscal 1996 was completed during the third quarter of fiscal
1997, and the plant was on a full operating schedule by the end
of the quarter. Integration of the Threads USA acquisition into
A&E's operations continues, as well as initiatives to improve
customer service, streamline manufacturing processes and reduce
operating expenses.
6
Harris Teeter sales in the third quarter of fiscal 1997 of
$484.4 million increased 7% over the $454.1 million reported for
the comparable period last year. Net sales for stores in
operation during both periods declined 0.3%. Comparative sales
results reflect increased competition, including a number of
competitive store openings in the Harris Teeter market areas.
The overall sales growth of Harris Teeter came from increased
selling capacity from its new stores. Operating profit of $11.4
million decreased 19% from the $14.1 million reported for the
comparable period last year. The decrease in operating profit
was primarily the result of an increase in opening expenses and
fixed costs of larger new stores recently opened and of vigorous
promotional activities. The increase in promotional activities
was designed to address the increased competition in Harris
Teeter's markets and to promote the customer loyalty card
introduced earlier in the year. Although the last few weeks of
the third fiscal quarter displayed some slight improvement in
comparable sales of stores in operation during both periods,
sales growth prospects continue to be tempered as a result of
competition, and increased promotional activities are expected to
continue in the foreseeable future. Four new larger stores were
opened in the third fiscal quarter of 1997, two of which were
replacements, leaving 138 in operation at June 29, 1997 compared
to 133 stores at June 30, 1996.
For the Nine Months Ended June 29, 1997 and June 30, 1996
---------------------------------------------------------
Consolidated sales for the nine months ended June 29, 1997
of $1.72 billion increased 8% over the $1.58 billion reported for
the first nine months of fiscal 1996, with both American & Efird
and Harris Teeter reporting increases. Operating profit of $70.4
million increased 16% over the $61.0 million reported for the
comparable period last year, with American & Efird reporting an
increase and Harris Teeter reporting a decrease. Net income of
$35.8 million was up 15% from $31.2 million reported last year.
Fully diluted and primary earnings per share for the first nine
months this year were $.77 versus $.67 a year ago.
American & Efird sales of $273 million for the first nine
months of fiscal 1997 increased 28% over the comparable period
last year. The sales increase was primarily in industrial thread
in the U.S. domestic markets, in which a significant portion of
the increase came from the acquisition of Threads USA consummated
in the prior year third fiscal quarter. During the first six
months of fiscal 1997, there were no comparable acquisition sales
in the same period last year. Further sales growth was driven by
good market conditions in most major industries served by A&E,
while during the prior year period relative weakness in thread
sales was related to weak apparel sales at retail. Export sales,
albeit a small portion of total sales, continued to grow as A&E
gained international market share. The sales growth provided for
very efficient manufacturing operating schedules throughout the
period which primarily accounted for the 53% increase in
operating profit for the first nine months of fiscal 1997, when
compared to the comparable prior year period in which weak
apparel sales at retail translated into reduced schedules at
A&E's manufacturing operations.
Harris Teeter sales of $1.4 billion for the nine months
ended June 29, 1997 increased 5% over the same period last year,
primarily the result of increased selling area in new and
7
remodeled stores, favorable customer acceptance of new stores,
strong holiday sales in the first fiscal quarter, and increased
promotional programs. Net sales for stores in operation during
the same period in the prior year displayed only slight growth
for the nine months and sales growth prospects continued to be
tempered as a result of competition. Operating profit declined
8% from the comparable prior year period as a result of increased
opening expenses and fixed costs associated with larger new
stores opened and of increased promotional activities implemented
to address competition and enhance customer loyalty.
Capital Resources and Liquidity
Ruddick has an overall financial goal of earning 15% return
on beginning shareholders' equity. The Company has not met that
objective in a number of years. At the same time, Ruddick seeks
to limit long-term debt so as to constitute no more than 40% of
capital employed, which includes long-term debt and shareholders'
equity. As of June 29, 1997, this percentage was 35.6% compared
to 32.2% at September 29, 1996.
The Company's principal source of liquidity has been
revenues from operations. The Company also has the ability to
borrow up to an aggregate of $100 million under established
revolving lines of credit with three banks. The maximum amount
outstanding under these credit facilities during the quarter
ended June 29, 1997 was $100 million, and $56 million was
outstanding at quarter end compared to $49 million at September
29, 1996. Borrowings and repayments under these revolving credit
facilities are of the same nature as short-term credit lines;
however, due to the nature and terms of the agreements allowing
up to five years for repayment, all borrowings under these
facilities are classified as long-term debt.
On April 15, 1997, the Company executed unsecured 7.72%
Senior Notes in the amount of $50 million, due April 15, 2017,
and an additional uncommitted $50 million Private Shelf Facility
with a major U.S. life insurance company. Subsequently, on July
15, 1997, the Company executed unsecured 7.55% Senior Notes in
the amount of $50 million, due July 15, 2017, under the Private
Shelf Facility. Under a separate Private Shelf Facility dated
March 1, 1996, the Company has uncommitted capacity to borrow an
additional $50 million. Proceeds from the executed unsecured
senior notes were used to reduce long term borrowings under
revolving credit facilities and the balance of existing 8.57%
term notes, respectively, which borrowings and term debt had been
primarily undertaken for capital expenditures. Capital asset
purchases for the nine months ended June 29, 1997, totaled $97
million compared to $100 million for the comparable prior year
period. American & Efird has spent $26 million of the $34
million it expects to spend in fiscal year 1997, and Harris
Teeter has spent $64 million of an expected $93 million. These
expenditures are for modernization and expansion. Management
expects that internally generated funds, supplemented by
available borrowing capacity, will be adequate to finance such
expenditures.
Working capital of $96.8 million at June 29, 1997 increased
$31.7 million from September 29, 1996. The net change in working
capital was primarily the result of the
8
increases in inventories and accounts receivable driven by
higher sales levels and reductions in cash balances, accounts
payable and accrued liabilities. The current ratio was 1.4 at
June 29, 1997 and 1.3 at September 29, 1996.
Covenants in certain of the Company's long-term debt
agreements limit the total indebtedness that the Company may
incur. Management believes that the limit on indebtedness does
not significantly restrict the Company's liquidity and that such
liquidity is adequate to meet foreseeable requirements.
Other Matters
The foregoing discussion contains some forward-looking
statements about the Company's financial condition and results of
operations, which are subject to certain risks and uncertainties
that could cause actual results to differ materially from those
reflected in the forward-looking statements. Readers are
cautioned not to place undue reliance on these forward-looking
statements, which reflect management's judgment only as of the
date hereof. The Company undertakes no obligation to publicly
revise these forward-looking statements to reflect events and
circumstances that arise after the date hereof.
Factors that might cause actual results to differ materially
from these forward-looking statements include (1) unforeseeable
changes in the market conditions faced by the Company, (2)
management's ability to accurately predict the adequacy of the
Company's present liquidity to meet future requirements, and (3)
changes in the Company's capital expenditures, new store openings
and store closings.
9
PART II. OTHER INFORMATION
- ------- -----------------
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- ------ --------------------------------
(A) EXHIBITS
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Note Purchase and Private
Shelf Agreement dated April
15, 1997 between Ruddick
Corporation and The Prudential
Insurance Company of America
with respect to $50,000,000
7.72% Senior Series B Notes
due April 15, 2017 and
$50,000,000 Private Shelf
Facility
10.1 Ruddick Corporation Nonstatutory
Stock Option Agreement
Between the Registrant
and John R. Belk
11 Statement Re: Computation of Per
Share Earnings
27 Financial Data Schedule
(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: August 13, 1997 /s/ R. N. Brigden
---------------------------------
R. N. BRIGDEN
VICE PRESIDENT - FINANCE
(PRINCIPAL FINANCIAL OFFICER)
10
CONFORMED COPY
________________________________________________________________
________________________________________________________________
RUDDICK CORPORATION
NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
$50,000,000
7.72% SENIOR SERIES B NOTES DUE APRIL 15, 2017
$50,000,000
PRIVATE SHELF FACILITY
Dated as of April 15, 1997
_______________________________________________________________
_______________________________________________________________
TABLE OF CONTENTS
Paragraph Page
1. AUTHORIZATION OF ISSUE OF SERIES B NOTES 1
1A. Authorization of Issue of Shelf Notes 1
2. PURCHASE AND SALE OF NOTES 2
2A. Purchase and Sale of Series B Notes 2
2B. Purchase and Sale of Shelf Notes 2
2B(1) Facility 2
2B(2) Issuance Period 3
2B(3) Request for Purchase 3
2B(4) Rate Quotes 4
2B(5) Acceptance 4
2B(6) Market Disruption 5
2B(7) Facility Closings 5
2B(8) Fees 6
2B(8)(i) [Intentionally Omitted] 6
2B(8)(ii) Issuance Fee 6
2B(8)(iii) Delayed Delivery Fee 6
2B(8)(iv) Cancellation Fee 7
3. CONDITIONS OF CLOSING 7
3A. Certain Documents 8
3B. [Intentionally Omitted] 8
3C. Representations and Warranties; No Default 8
3D. Purchase Permitted by Applicable Laws 9
3E. Payment of Fees 9
3F. No Material Adverse Change 9
4. PREPAYMENTS 9
4A. Required Prepayments of Shelf Notes 9
4B. Optional Prepayment With Yield-Maintenance Amount 9
4C. Notice of Optional Prepayment 9
4D. Application of Prepayments 10
4E. Retirement of Notes 10
5. AFFIRMATIVE COVENANTS 10
5A. Reporting Requirements 10
5A(1) General Information 10
5A(2) Officer's Certificates 12
5A(3) Annual Accountant's Letter 12
5A(4) Special Information 12
5B. Inspection of Property 13
5C. Covenant to Secure Notes Equally 14
5D. Guaranteed Obligations 14
5E. Maintenance of Insurance 14
5F. Maintenance of Corporate Existence/
Compliance with Law/Preservation of Property 14
5G. Compliance with Environmental Laws 15
5H. No Integration 15
5I. Financial Records 15
6. NEGATIVE COVENANTS 15
6A. Fixed Charge Coverage and Debt Limits 16
6B. Subsidiary Debt 16
6C. Liens, Debt and Other Restrictions 16
6C(1) Liens 16
6C(2) Merger or Consolidation 18
6C(3) Transactions with Related Party 18
6D. Sale of Property 18
6E. Subsidiary Stock and Debt 19
6F. ERISA 20
6G. Environmental Matters 20
6H. Specified Laws 21
7. EVENTS OF DEFAULT 21
7A. Acceleration 21
7B. Rescission of Acceleration 24
7C. Notice of Acceleration or Rescission 24
7D. Other Remedies 24
8. REPRESENTATIONS, COVENANTS AND WARRANTIES 25
8A. Organization 25
8B. Financial Statements 25
8C. Actions Pending 26
8D. Outstanding Debt 26
8E. Title to Properties 26
8F. Taxes 26
8G. Conflicting Agreements and Other Matters 26
8H. Offering of Notes 27
8I. Use of Proceeds 27
8J. ERISA 27
8K. Governmental Consent 28
8L. Environmental Compliance 28
8M. Disclosure 29
8N. Hostile Tender Offers 29
9. REPRESENTATIONS OF EACH PURCHASER 29
9A. Nature of Purchase 29
9B. Source of Funds 29
10. DEFINITIONS; ACCOUNTING MATTERS 30
10A. Yield-Maintenance Terms 31
10B. Other Terms 32
10C. Accounting Principles, Terms and Determinations 41
11. MISCELLANEOUS 41
11A. Payments 41
11B. Expenses 42
11C. Consent to Amendments 42
11D. Form, Registration, Transfer and Exchange
of Notes; Lost Notes 43
11E. Persons Deemed Owners; Participations 44
11F. Survival of Representations and Warranties;
Entire Agreement 44
11G. Successors and Assigns 44
11H. Independence of Covenants 44
11I. Notices 44
11J. Payments Due on Non-Business Days 45
11K. Severability 45
11L. Descriptive Headings 45
11M. Satisfaction Requirement 45
11N. Governing Law; Submission to Jurisdiction 45
11O. Severalty of Obligations 46
11P. Counterparts 46
11Q. Binding Agreement 47
Purchaser Schedule
Exhibit A-1 -- Form of Series B Note
Exhibit A-2 -- Form of Shelf Note
Exhibit B -- Form of Request for Purchase
Exhibit C -- Form of Confirmation of Acceptance
Exhibit D-1 -- Form of Opinion of Company Counsel, Series B
Note Closing
Exhibit D-2 -- Form of Opinion of Company Counsel, Shelf
Note Closing
Schedule 6C(1) -- Outstanding Liens
Schedule 8A -- Subsidiaries
Schedule 8D -- Outstanding Debt
Schedule 8G -- List of Agreements Restricting Debt
Schedule 8L -- Environmental
RUDDICK CORPORATION
Two First Union Plaza
Suite 2000
Charlotte, North Carolina 28282
As of April 15, 1997
The Prudential Insurance
Company of America ("Prudential")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as
hereinafter provided (together with
Prudential, the "Purchasers")
c/o Prudential Capital Group
One Gateway Center, 11th Floor
7-45 Raymond Boulevard West
Newark, New Jersey 07102-5311
Ladies and Gentlemen:
The undersigned, Ruddick Corporation (herein called the
"Company"), hereby agrees with the purchasers named in the
Purchaser Schedule attached hereto (herein called the
"Purchasers") as follows:
1. AUTHORIZATION OF ISSUE OF SERIES B NOTES. The Company
will authorize the issue of its senior promissory notes (the
"Series B Notes") in the aggregate principal amount of
$50,000,000, to be dated the date of issue thereof, to mature
April 15, 2017, to bear interest on the unpaid balance thereof
from the date thereof until the principal thereof shall have
become due and payable at the rate of 7.72% per annum and on
overdue principal, Yield-Maintenance Amount and interest at the
rate specified therein, and to be substantially in the form of
Exhibit A-1 attached hereto. The term "Series B Notes" as used
herein shall include each Series B Note delivered pursuant to any
provision of this Agreement and each Series B Note delivered in
substitution or exchange for any such Note pursuant to any such
provision.
1A. Authorization of Issue of Shelf Notes. The Company
will authorize the issue of its additional senior promissory
notes (the "Shelf Notes") in the aggregate principal amount of
$50,000,000, to be dated the date of issue thereof, to mature, in
the case of each Shelf Note so issued, no more than 25 years
after the date of original issuance thereof, to have an average
life, in the case of each Shelf Note so issued, of no more than
20 years after the date of original issuance thereof, to bear
interest on the unpaid balance thereof from the date thereof at
the rate per annum, and to have such other particular terms, as
shall be set forth, in the case of each Shelf Note so issued, in
the Confirmation of Acceptance with respect to such Shelf Note
delivered pursuant to paragraph 2B(5), and to be substantially in
the form of Exhibit A-2 attached hereto. The terms "Shelf Note"
and "Shelf Notes" as used herein shall include each Shelf Note
delivered pursuant to any provision of this Agreement and each
Shelf Note delivered in substitution or exchange for any such
Shelf Note pursuant to any such provision. The terms "Note" and
"Notes" as used herein shall include each Series B Note and each
Shelf Note delivered pursuant to any provision of this Agreement
and each Note delivered in substitution or exchange for any such
Note pursuant to any such provision. Notes which have (i) the
same final maturity, (ii) the same principal prepayment dates,
(iii) the same principal prepayment amounts (as a percentage of
the original principal amount of each Note), (iv) the same
interest rate, (v) the same interest payment periods and (vi) the
same date of issuance (which, in the case of a Note issued in
exchange for another Note, shall be deemed for these purposes the
date on which such Note's ultimate predecessor Note was issued),
are herein called a "Series" of Notes.
2. PURCHASE AND SALE OF NOTES.
2A. Purchase and Sale of Series B Notes. The Company
hereby agrees to sell to each Purchaser and, subject to the terms
and conditions herein set forth, each Purchaser agrees to
purchase from the Company the aggregate principal amount of
Series B Notes set forth opposite such Purchaser's name in the
Purchaser Schedule attached hereto at 100% of such aggregate
principal amount. On April 15, 1997 or any other date prior to
April 30, 1997 upon which the Company and the Purchaser(s) may
agree (herein called the "Series B Closing Day"), the Company
will deliver to each Purchaser, at the offices of Prudential
Capital Group at One Gateway Center, 11th Floor, 7-45 Raymond
Boulevard West, Newark, New Jersey 07102-5311, one or more Series
B Notes registered in such Purchaser's name, evidencing the
aggregate principal amount of Series B Notes to be purchased by
such Purchaser and in the denomination or denominations specified
with respect to such Purchaser in the Purchaser Schedule against
payment of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account
#2070495075681 at First Union National Bank of North Carolina,
Main Branch, Charlotte, North Carolina, ABA Routing Number
053000219, with instructions to First Union to notify M.F. Fyre
upon receipt ((704) 372-5404).
2B. Purchase and Sale of Shelf Notes.
2B(1) Facility. Prudential is willing to consider, in
its sole discretion and within limits which may be authorized for
purchase by Prudential and Prudential Affiliates from time to
time, the purchase of Shelf Notes pursuant to this Agreement.
The willingness of Prudential to consider such purchase of Shelf
Notes is herein called the "Facility". At any time, the
aggregate principal amount of Shelf Notes stated in paragraph 1A,
minus the aggregate principal amount of Shelf Notes purchased and
sold pursuant to this Agreement prior to such time, minus the
aggregate principal amount of Accepted Notes (as hereinafter
defined) which have not yet been purchased and sold hereunder
prior to such time, plus the aggregate principal amount of Shelf
Notes purchased and sold pursuant to this Agreement and
thereafter retired prior to such time is herein called the
"Available Facility Amount" at such time. NOTWITHSTANDING THE
WILLINGNESS OF PRUDENTIAL TO CONSIDER PURCHASES OF SHELF NOTES,
THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT
NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL BE
OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO
QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC
PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE
CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL
AFFILIATE.
2B(2) Issuance Period. Shelf Notes may be issued and
sold pursuant to this Agreement until the earlier of:
(i) the second anniversary of the date of this
Agreement (or if such anniversary is not a Business
Day, the Business Day next preceding such anniversary),
(ii) the thirtieth day after Prudential shall have
given to the Company, or the Company shall have given
to Prudential, a notice stating that it elects to
terminate the issuance and sale of Shelf Notes pursuant
to this Agreement (or if such thirtieth day is not a
Business Day, the Business Day next preceding such
thirtieth day),
(iii) the last Closing Day after which there
is no Available Facility Amount,
(iv) the termination of the Facility under
paragraph 7, and
(v) the acceleration of any Note under paragraph
7A of this Agreement.
The period during which Shelf Notes may be issued and sold
pursuant to this agreement is herein called the "Issuance
Period".
2B(3) Request for Purchase. The Company may from time
to time during the Issuance Period make requests for purchases of
Shelf Notes (each such request being herein called a "Request for
Purchase"). Each Request for Purchase shall be made to
Prudential by telecopier or overnight delivery service, and
shall:
(i) specify the aggregate principal amount of
Shelf Notes covered thereby, which shall not be less
than $10,000,000 and not be greater than the Available
Facility Amount at the time such Request for Purchase
is made,
(ii) specify the principal amounts, final
maturities (which shall be no more than 25 years from
the date of issuance), principal prepayment dates and
amounts and interest payment periods (which shall be
quarterly in arrears) of the Shelf Notes covered
thereby,
(iii) specify the use of proceeds of such
Shelf Notes (which shall not be used to finance a
Hostile Tender Offer),
(iv) specify the proposed day for the closing of
the purchase and sale of such Shelf Notes, which shall
be a Business Day during the Issuance Period not less
than 10 days and not more than 20 days after the making
of such Request for Purchase,
(v) specify the number of the account and the
name and address of the depository institution to which
the purchase prices of such Shelf Notes are to be
transferred on the Closing Day for such purchase and
sale,
(vi) certify that the representations and
warranties contained in paragraph 8 are true on and as
of the date of such Request for Purchase and that there
exists on the date of such Request for Purchase no
Event of Default or Default,
(vii) specify the Designated Spread for such
Shelf Notes, and
(viii) be substantially in the form of Exhibit
B attached hereto.
Each Request for Purchase shall be in writing and shall be deemed
made when received by Prudential.
2B(4) Rate Quotes. Not later than five Business Days
after the Company shall have given Prudential a Request for
Purchase pursuant to paragraph 2B(3), Prudential may, but shall
be under no obligation to, provide to the Company by telephone or
telecopier, in each case between 9:30 A.M. and 2:00 P.M. New York
City local time (or such later time as Prudential may elect),
interest rate quotes for the several principal amounts,
maturities, principal prepayment schedules, and interest payment
periods of Shelf Notes specified in such Request for Purchase.
Each quote shall represent the interest rate per annum payable on
the outstanding principal balance of such Shelf Notes at which
Prudential or a Prudential Affiliate would be willing to purchase
such Shelf Notes at 100% of the principal amount thereof.
2B(5) Acceptance. Within 30 minutes after Prudential
shall have provided any interest rate quotes pursuant to
paragraph 2B(4) or such shorter period as Prudential may specify
to the Company (such period herein called the "Acceptance
Window"), the Company may, subject to paragraph 2B(6), elect to
accept such interest rate quotes as to not less than $10,000,000
aggregate principal amount of the Shelf Notes specified in the
related Request for Purchase. Such election shall be made by an
Authorized Officer of the Company notifying Prudential by
telephone or telecopier within the Acceptance Window (but not
earlier than 9:30 A.M. or later than 2:00 P.M., New York City
local time or such later time as Prudential may elect) that the
Company elects to accept such interest rate quotes, specifying
the Shelf Notes (each such Shelf Note being herein called an
"Accepted Note") as to which such acceptance (herein called an
"Acceptance") relates. The day the Company notifies Prudential
of an Acceptance with respect to any Accepted Notes is herein
called the "Acceptance Day" for such Accepted Notes. Any
interest rate quotes as to which Prudential does not receive an
Acceptance within the Acceptance Window shall expire, and no
purchase or sale of Shelf Notes hereunder shall be made based on
such expired interest rate quotes. Subject to paragraph 2B(6)
and the other terms and conditions hereof, the Company agrees to
sell to Prudential or a Prudential Affiliate, and Prudential
agrees to purchase, or to cause the purchase by a Prudential
Affiliate of, the Accepted Notes at 100% of the principal amount
of such Notes. As soon as practicable following the Acceptance
Day, the Company, Prudential and each Prudential Affiliate which
is to purchase any such Accepted Notes will execute a
confirmation of such Acceptance substantially in the form of
Exhibit C attached hereto (herein called a "Confirmation of
Acceptance"). If the Company should fail to execute and return
to Prudential within three Business Days following receipt
thereof a Confirmation of Acceptance with respect to any Accepted
Notes, Prudential may at its election at any time prior to its
receipt thereof cancel the closing with respect to such Accepted
Notes by so notifying the Company in writing.
2B(6) Market Disruption. Notwithstanding the provisions
of paragraph 2B(5), if Prudential shall have provided interest
rate quotes pursuant to paragraph 2B(4) and thereafter prior to
the time an Acceptance with respect to such quotes shall have
been notified to Prudential in accordance with paragraph 2B(5)
the domestic market for U.S. Treasury securities or derivatives
shall have closed or there shall have occurred a general
suspension, material limitation, or significant disruption of
trading in securities generally on the New York Stock Exchange or
in the domestic market for U.S. Treasury securities or
derivatives, then such interest rate quotes shall expire, and no
purchase or sale of Shelf Notes hereunder shall be made based on
such expired interest rate quotes. If the Company thereafter
notifies Prudential of the Acceptance of any such interest rate
quotes, such Acceptance shall be ineffective for all purposes of
this Agreement, and Prudential shall promptly notify the Company
that the provisions of this paragraph 2B(6) are applicable with
respect to such Acceptance.
2B(7) Facility Closings. Not later than 11:30 A.M. (New
York City local time) on the Closing Day for any Accepted Notes,
the Company will deliver to each Purchaser listed in the
Confirmation of Acceptance relating thereto at the offices of the
Prudential Capital Group, Gateway Center One, 11th Floor, 7-45
Raymond Boulevard West, Newark, New Jersey the Accepted Notes to
be purchased by such Purchaser in the form of one or more Notes
in authorized denominations as such Purchaser may request for
each Series of Accepted Notes to be purchased on the Closing Day,
dated the Closing Day and registered in such Purchaser's name (or
in the name of its nominee), against payment of the purchase
price thereof by transfer of immediately available funds for
credit to the Company's account specified in the Request for
Purchase of such Notes. If the Company fails to tender to any
Purchaser the Accepted Notes to be purchased by such Purchaser on
the scheduled Closing Day for such Accepted Notes as provided
above in this paragraph 2B(7), or any of the conditions specified
in paragraph 3 shall not have been fulfilled by the time required
on such scheduled Closing Day, the Company shall, prior to 1:00
P.M., New York City local time, on such scheduled Closing Day
notify Prudential (which notification shall be deemed received by
each Purchaser) in writing whether (i) such closing is to be
rescheduled (such rescheduled date to be a Business Day during
the Issuance Period not less than one Business Day and not more
than 10 Business Days after such scheduled Closing Day (the
"Rescheduled Closing Day") and certify to Prudential (which
certification shall be for the benefit of each Purchaser) that
the Company reasonably believes that it will be able to comply
with the conditions set forth in paragraph 3 on such Rescheduled
Closing Day and that the Company will pay the Delayed Delivery
Fee in accordance with paragraph 2B(8)(iii) or (ii) such closing
is to be canceled. In the event that the Company shall fail to
give such notice referred to in the preceding sentence,
Prudential (on behalf of each Purchaser) may at its election, at
any time after 1:00 P.M., New York City local time, on such
scheduled Closing Day, notify the Company in writing that such
closing is to be canceled. Notwithstanding anything to the
contrary appearing in this Agreement, the Company may elect to
reschedule a closing with respect to any given Accepted Notes on
not more than one occasion, unless Prudential shall have
otherwise consented in writing.
2B(8) Fees.
2B(8)(i) [Intentionally Omitted].
2B(8)(ii) Issuance Fee. The Company will pay to Prudential
in immediately available funds a fee (herein called the "Issuance
Fee") on each Closing Day (other than the Series B Closing Day)
occuring after June 1, 1997 in an amount equal to 0.10% of the
aggregate principal amount of Notes sold on such Closing Day.
2B(8)(iii) Delayed Delivery Fee. If the closing of the
purchase and sale of any Accepted Note is delayed for any reason
beyond the original Closing Day for such Accepted Note, the
Company will pay to Prudential (a) on the Cancellation Date or
actual closing date of such purchase and sale and (b) if earlier
than the Cancellation Date or actual closing date, the next
Business Day following 90 days after the Acceptance Day for such
Accepted Note and on each Business Day following 90 days after
the prior payment hereunder, a fee (herein called the "Delayed
Delivery Fee") calculated as follows:
(BEY - MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield, i.e., the bond
equivalent yield per annum of such Accepted Note, "MMY" means
Money Market Yield, i.e., the yield per annum on a commercial
paper investment of the highest quality selected by Prudential on
the date Prudential receives notice of the delay in the closing
for such Accepted Note having a maturity date or dates the same
as, or closest to, the Rescheduled Closing Day or Rescheduled
Closing Days (a new alternative investment being selected by
Prudential each time such closing is delayed); "DTS" means Days
to Settlement, i.e., the number of actual days elapsed from and
including the original Closing Day with respect to such Accepted
Note (in the case of the first such payment with respect to such
Accepted Note) or from and including the date of the next
preceding payment (in the case of any subsequent delayed delivery
fee payment with respect to such Accepted Note) to but excluding
the date of such payment; and "PA" means Principal Amount, i.e.,
the principal amount of the Accepted Note for which such
calculation is being made. In no case shall the Delayed Delivery
Fee be less than zero. Nothing contained herein shall obligate
any Purchaser to purchase any Accepted Note on any day other than
the Closing Day for such Accepted Note, as the same may be
rescheduled from time to time in compliance with paragraph 2B(7).
2B(8)(iv) Cancellation Fee. If the Company at any time
notifies Prudential in writing that the Company is canceling the
closing of the purchase and sale of any Accepted Note, or if
Prudential notifies the Company in writing under the
circumstances set forth in the last sentence of paragraph 2B(5)
or the penultimate sentence of paragraph 2B(7) that the closing
of the purchase and sale of such Accepted Note is to be canceled,
or if the closing of the purchase and sale of such Accepted Note
is not consummated on or prior to the last day of the Issuance
Period (the date of any such notification, or the last day of the
Issuance Period, as the case may be, being herein called the
"Cancellation Date"), the Company will pay the Purchasers in
immediately available funds an amount (the "Cancellation Fee")
calculated as follows:
PI X PA
where "PI" means Price Increase, i.e., the quotient (expressed in
decimals) obtained by dividing (a) the excess of the ask price
(as determined by Prudential) of the Hedge Treasury Note(s) on
the Cancellation Date over the bid price (as determined by
Prudential) of the Hedge Treasury Note(s) on the Acceptance Day
for such Accepted Note by (b) such bid price; and "PA" has the
meaning ascribed to it in paragraph 2B(8)(iii). The foregoing
bid and ask prices shall be as reported by Telerate Systems, Inc.
(or, if such data for any reason ceases to be available through
Telerate Systems, Inc., any publicly available source of similar
market data). Each price shall be based on a U.S. Treasury
security having a par value of $100.00 and shall be rounded to
the second decimal place. In no case shall the Cancellation Fee
be less than zero.
3. CONDITIONS OF CLOSING. Each Purchaser's obligation to
purchase and pay for the Notes to be purchased by such Purchaser
hereunder is subject to the satisfaction, on or before the date
of closing, of the following conditions:
3A. Certain Documents. Such Purchaser shall have received
the following, each dated the date of the applicable Closing Day:
(i) The Note(s) to be purchased by such
Purchaser.
(ii) Certified copies of the resolutions of the
Board of Directors of the Company authorizing the
execution and delivery of this Agreement and the
issuance of the Notes, and of all documents evidencing
other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and
the Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary and one other officer of the
Company certifying the names and true signatures of the
officers of the Company authorized to sign this
Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) Certified copies of the Articles of
Incorporation and By-laws of the Company.
(v) A favorable opinion of Smith Helms Mulliss &
Moore, L.L.P., special counsel of the Company (or such
other counsel designated by the Company and acceptable
to the Purchaser(s)) satisfactory to such Purchaser and
substantially in the form of Exhibit D-1 (in the case
of the Series B Notes) or D-2 (in the case of any Shelf
Notes) attached hereto and as to such other matters as
such Purchaser may reasonably request. The Company
hereby directs each such counsel to deliver such
opinion, agrees that the issuance and sale of any Notes
will constitute a reconfirmation of such direction, and
understands and agrees that each Purchaser receiving
such an opinion will and is hereby authorized to rely
on such opinion.
(vi) A good standing certificate for the Company
and each Restricted Subsidiary whose book value of
total assets constitutes more than five (5) percent of
Consolidated Net Worth from the State of its
incorporation dated of a recent date and good standing
or other certificates of qualification to do business
as a foreign corporation for the Company and each such
Restricted Subsidiaries in the States of South
Carolina, Georgia and Virginia and such other evidence
of the status of the Company or any of its Restricted
Subsidiaries as such Purchaser may reasonably request.
(vii) Additional documents or certificates
with respect to legal matters or corporate or other
proceedings related to the transactions contemplated
hereby as may be reasonably requested by such
Purchaser.
3B. [Intentionally Omitted].
3C. Representations and Warranties; No Default. The
representations and warranties contained in paragraph 8 shall be
true on and as of such Closing Day, except to the extent of
changes caused by the transactions herein contemplated; there
shall exist on such Closing Day no Event of Default or Default;
and the Company shall have delivered to such Purchaser an
Officer's Certificate, dated such Closing Day, to both such
effects.
3D. Purchase Permitted By Applicable Laws. The purchase of
and payment for the Notes to be purchased by such Purchaser on
the date of closing on the terms and conditions herein provided
(including the use of the proceeds of such Notes by the Company)
shall not violate any applicable law or governmental regulation
(including, without limitation, section 5 of the Securities Act
or Regulation G, T or X of the Board of Governors of the Federal
Reserve System) and shall not subject such Purchaser to any tax,
penalty, liability or other onerous condition under or pursuant
to any applicable law or governmental regulation, and such
Purchaser shall have received such certificates or other evidence
as it may request to establish compliance with this condition.
3E. Payment of Fees. The Company shall have paid
Prudential any fees due it pursuant to or in connection with this
Agreement, including any Issuance Fee due pursuant to paragraph
2B(8)(ii) and any Delayed Delivery Fee due pursuant to paragraph
2B(8)(iii).
3F. No Material Adverse Change. Such Purchaser shall have
received a certificate from the chief financial officer of the
Company, dated the applicable Closing Day, saying that no
material adverse change in the financial condition, business,
operations or prospects of the Company or its Subsidiaries, taken
as a whole, has occurred since September 29, 1996.
4. PREPAYMENTS. The Series B Notes shall be subject to
prepayment only with respect to the optional prepayments
permitted by paragraph 4B. Any Shelf Notes shall be subject to
required prepayments as and to the extent provided in paragraph
4A and to the optional prepayments permitted by paragraph 4B.
Any prepayment made by the Company pursuant to any other
provision of this paragraph 4 shall not reduce or otherwise
affect its obligation to make any required prepayment as
specified in paragraph 4A.
4A. Required Prepayments of Shelf Notes. Each Series of
Shelf Notes shall be subject to required prepayments, if any, set
forth in the Notes of such Series.
4B. Optional Prepayment With Yield-Maintenance Amount. The
Notes of each Series shall be subject to prepayment, in whole at
any time or from time to time in part (in integral multiples of
$100,000 and in a minimum amount of $1,000,000), at the option of
the Company, at 100% of the principal amount so prepaid plus
interest thereon to the prepayment date and the Yield-Maintenance
Amount, if any, with respect to each such Note. Any partial
prepayment of a Series of Notes pursuant to this paragraph 4B
shall be applied in satisfaction of required payments of
principal in inverse order of their scheduled due dates.
4C. Notice of Optional Prepayment. The Company shall give
the holder of each Note of a Series irrevocable written notice of
such prepayment pursuant to paragraph 4B not less than 10
Business Days prior to the prepayment date, specifying such
prepayment date, the aggregate principal amount of the Notes of
such Series held by such holder to be prepaid on that date and
that such prepayment is to be made pursuant to paragraph 4B.
Notice of prepayment having been given as aforesaid, the
principal amount of the Notes specified in such notice, together
with interest thereon to the prepayment date and together with
the Yield-Maintenance Amount, if any, herein provided, shall
become due and payable on such prepayment date. The Company
shall, on or before the day on which it gives written notice of
any prepayment pursuant to paragraph 4B, give telephonic notice
of the principal amount of the Notes to be prepaid and the
prepayment date to each Significant Holder which shall have
designated a recipient of such notices in the Purchaser Schedule
attached hereto or the applicable Confirmation of Acceptance or
by notice in writing to the Company.
4D. Application of Prepayments. In the case of each
prepayment of less than the entire unpaid principal amount of all
outstanding Notes of any Series, pursuant to paragraphs 4A or 4B,
the principal amount to be prepaid shall be applied pro rata to
all outstanding Notes of such Series (including, for the purpose
of this paragraph 4D only, all Notes prepaid or otherwise retired
or purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates other than by prepayment pursuant to
paragraphs 4A or 4B) according to the respective unpaid principal
amounts thereof.
4E. Retirement of Notes. The Company shall not, and shall
not permit any of its Subsidiaries or Affiliates to, prepay or
otherwise retire in whole or in part prior to their stated final
maturity (other than by prepayment pursuant to paragraphs 4A or
4B or upon acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise acquire, directly or
indirectly, Notes of any Series held by any holder unless the
Company or such Subsidiary or Affiliate shall have offered to
prepay or otherwise retire or purchase or otherwise acquire, as
the case may be, the same proportion of the aggregate principal
amount of Notes of such Series held by each other holder of Notes
of such Series at the time outstanding upon the same terms and
conditions. Any Notes so prepaid or otherwise retired or
purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates shall not be deemed to be outstanding
for any purpose under this Agreement, except as provided in
paragraph 4D.
5. AFFIRMATIVE COVENANTS.
5A. Reporting Requirements.
5A(1) General Information. The Company covenants that
it will deliver to each Significant Holder in triplicate:
(i) as soon as practicable and in any event
within 45 days after the end of each quarterly period
(other than the fourth quarterly period) in each fiscal
year,
(1) unaudited Consolidated statements of
income and retained earnings and statements of
cash flows for the period from the beginning of
the current fiscal year to the end of such
quarterly period, and
(2) an unaudited Consolidated balance sheet
as at the end of such quarterly period,
setting forth in each case in comparative form figures
for the corresponding period in the preceding fiscal
year, all in reasonable detail and satisfactory in form
to the Required Holder(s) and certified by an
authorized financial officer of the Company as fairly
presenting, in all material respects, the financial
condition of the Company and its Consolidated
Subsidiaries as of the end of such period and the
results of their operations for the period then ended
in accordance with generally accepted accounting
principles, subject to changes resulting from year-end
adjustments and the inclusion of abbreviated footnotes;
provided, however, that delivery pursuant to clause
(iii) below of copies of the Quarterly Report on Form
10-Q of the Company for such quarterly period filed
with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this clause (i);
(ii) as soon as practicable and in any event
within 90 days after the end of each fiscal year,
(1) audited Consolidated statements of
income and retained earnings and statements
of cash flows for such year, and
(2) an audited Consolidated balance
sheet as at the end of such year,
setting forth in each case in comparative form
corresponding Consolidated figures from the preceding
annual audit, all in reasonable detail and satisfactory
in scope to the Required Holder(s) and reported on by
independent public accountants of recognized national
standing selected by the Company whose report shall be
without limitation as to the scope of the audit and
reasonably satisfactory in substance to the Required
Holder(s); provided, however, that delivery pursuant to
clause (iii) below of copies of the Annual Report on
Form 10-K of the Company for such year filed with the
Securities and Exchange Commission shall be deemed to
satisfy the requirements of this clause (ii);
(iii) promptly upon transmission thereof, copies
of all such financial statements, proxy statements,
notices and reports as it shall send to its public
stockholders and copies of all registration statements
(without exhibits) and all reports (other than any
registration statement filed on Form S-8) which it
files with the Securities and Exchange Commission (or
any governmental body or agency succeeding to the
functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each
other material report (including, without limitation,
management letters) submitted to the Company or any
Subsidiary by independent accountants in connection
with any annual, interim or special audit made by them
of the books of the Company or any Subsidiary;
(v) promptly upon receipt thereof, a copy of each
report, survey, study, evaluation, assessment or other
document prepared by any consultant, engineer,
Environmental Authority or other Person relating to
compliance by the Company or any Subsidiary with any
Environmental Requirements, if the cost of remediation,
repair or compliance may be reasonably expected to
exceed $5,000,000 in any one case or in the aggregate;
(vi) with reasonable promptness, upon the request
of the holder of any Note, provide such holder, and any
qualified institutional buyer designated by such
holder, such financial and other information as such
holder may reasonably determine to be necessary in
order to permit compliance with the information
requirements of Rule 144A under the Securities Act in
connection with the resale of Notes, except at such
times as the Company is subject to reporting
requirements of section 13 or 15(d) of the Exchange
Act. For the purpose of this clause (vi), the term
"qualified institutional buyer" shall have the meaning
specified in Rule 144A under the Securities Act; and
(vii) with reasonable promptness, such other
data relating to the business, operations, properties
or financial condition of the Company or any of its
Subsidiaries as a Significant Holder may reasonably
request.
5A(2) Officer's Certificates. Together with each
delivery of financial statements required by clauses 5A(i) and
(ii) above, the Company will deliver to each Significant Holder
an Officer's Certificate demonstrating (with computations in
reasonable detail) compliance with the provisions of paragraphs
6A, 6B and 6C(1) and stating that there exists no Event of
Default or Default, or, if any Event of Default or Default
exists, specifying the nature and period of existence thereof and
what action the Company has taken, is taking or proposes to take
with respect thereto;
5A(3) Annual Accountant's Letter. Together with each
delivery of financial statements required by clause 5A(ii) above,
the Company will deliver to each Significant Holder a certificate
of the independent public accountants giving the report on such
financial statements stating that, in making the audit necessary
for their report, they have obtained no knowledge of any Event of
Default or Default, or, if they have obtained knowledge of any
Event of Default or Default, specifying the nature and period of
existence thereof. The accountants, however, shall not be liable
to anyone by reason of their failure to obtain knowledge of any
Event of Default or Default which would not be disclosed in the
course of an audit conducted in accordance with generally
accepted auditing standards;
5A(4) Special Information. The Company also covenants
that within 5 Business Days after any Responsible Officer obtains
knowledge of:
(a) an Event of Default or Default;
(b) a material adverse change in the financial
condition, business or operations of the Company and
its Subsidiaries, taken as a whole;
(c) legal proceedings filed against the Company
and/or any Subsidiary, which reasonably could be
expected to have a material adverse effect on the
financial condition, business or operations of the
Company and its Subsidiaries, taken as a whole, or
which in any manner draws into question the validity of
or reasonably could be expected to impair the ability
of the Company to perform its obligations under this
Agreement or the Notes;
(d) a default under any agreement or note
evidencing Debt for which the Company or any Subsidiary
is liable, which individually or in the aggregate with
all other agreements and notes in default for which the
Company or any Subsidiary is liable, exceed $1,000,000;
(e) the occurrence of any other event that
reasonably could be expected to impair the ability of
the Company to meet its obligations hereunder;
(f) any (i) Environmental Liabilities, (ii)
pending, threatened or anticipated Environmental
Proceedings, (iii) Environmental Notices, (iv)
Environmental Judgments and Orders, or (v)
Environmental Releases at, on, in, under or in any way
affecting the Properties which reasonably could be
expected to have a material adverse effect on the
business, operations or financial condition of the
Company and its Subsidiaries, taken as a whole; or
(g) with respect to any Plan that is subject to
the funding requirements of Section 302 of ERISA or
Section 412 of the Code, the Company (i) has given or
is required to give notice to the Pension Benefit
Guaranty Corporation that a material reportable event
has occurred with respect to such Plan, (ii) has
delivered notice to the Pension Benefit Guaranty
Corporation of any intent to withdraw from or terminate
any such Plan, or (iii) has failed to make timely a
contribution to any such Plan;
the Company will deliver to each Significant Holder an Officer's
Certificate specifying the nature and period of existence thereof
and what action the Company or the Subsidiary has taken, is
taking or proposes to take with respect thereto.
5B. Inspection of Property. The Company covenants that, at
such reasonable times and as often as a Significant Holder may
reasonably request, it will permit any Person designated by a
Significant Holder in writing, at such Significant Holder's
expense unless a Default has occurred and is continuing in which
case at the Company's expense, to:
(i) visit and inspect any of the properties of
the Company and any Subsidiary;
(ii) examine the corporate books and financial
records of the Company and its Subsidiaries and make
copies thereof or extracts therefrom; and
(iii) discuss the affairs, finances and
accounts of any of such corporations with the principal
officers of the Company or any Subsidiary and their
independent public accountants.
5C. Covenant to Secure Notes Equally. The Company
covenants that if it or any Subsidiary shall create or assume any
Lien upon any of its property or assets, whether now owned or
hereafter acquired, other than Liens permitted by the provisions
of paragraph 6C(1) (unless prior written consent shall have been
obtained under paragraph 11C), it will make or cause to be made
effective provision whereby the Notes will be secured by such
Lien equally and ratably with any and all other Debt thereby
secured so long as any such other Debt shall be so secured.
5D. Guaranteed Obligations. Except for Liens permitted by
paragraph 6C(1), the Company covenants that if any Person (other
than the Company) Guarantees or provides collateral in any manner
for any Debt of the Company or any Subsidiary (other than any
such Guarantees in an amount not to exceed $10,000,000,
individually or in the aggregate), it will simultaneously cause
such Person to Guarantee or provide collateral for the Notes
equally and ratably with all Debt Guaranteed or secured by such
Person for so long as such Debt is Guaranteed and pursuant to
documentation in form and substance reasonably satisfactory to
such holder.
5E. Maintenance of Insurance. The Company covenants that
it and each Subsidiary will maintain, with responsible insurers,
insurance with respect to its properties and business against
such casualties and contingencies (including, but not limited to,
public liability, larceny, embezzlement or other criminal
misappropriation) and in such amounts as is customary in the case
of similarly situated corporations engaged in the same or similar
businesses.
5F. Maintenance of Corporate Existence/Compliance with
Law/Preservation of Property. The Company covenants that, except
as permitted under paragraph 6C(2) and 6D, it and each Subsidiary
will do or cause to be done all things necessary to, at all
times:
(i) preserve, renew and keep in full force and
effect the corporate existence of the Company and its
Subsidiaries (other than those Subsidiaries not
material to the financial condition, business or
operations of the Company and its Subsidiaries taken as
a whole);
(ii) comply with all laws and regulations
(including, without limitation, laws and regulations
relating to equal employment opportunity and employee
safety) applicable to it and any Subsidiary except
where the failure to comply could not reasonably be
expected to have a material adverse effect on the
business, operations or financial condition of the
Company and its Subsidiaries, taken as a whole;
(iii) maintain, preserve and protect all
material licenses, certificates, permits, franchises
and intellectual property of the Company and its
Subsidiaries; and
(iv) preserve all the remainder of its property
used or useful in the conduct of its business and keep
the same in good repair, working order and condition
excluding normal wear and tear.
5G. Compliance with Environmental Laws. The Company
covenants that it and each Subsidiary will, comply in a timely
fashion with, or operate pursuant to valid waivers of the
provisions of, all applicable Environmental Requirements,
including, without limitation, the emission of wastewater
effluent, solid and hazardous waste and air emissions together
with any other applicable Environmental Requirements for
conducting, on a timely basis, periodic tests and monitoring for
contamination of ground water, surface water, air and land and
for biological toxicity of the aforesaid, and all applicable
regulations of the Environmental Protection Agency or other
relevant federal, state or local governmental authority, except
where the failure to comply could not reasonably be expected to
have a material adverse effect on the business, operations or
financial condition of the Company and its Subsidiaries, taken as
a whole. The Company agrees to indemnify and hold you, your
officers, agents and employees (each an "Indemnified Person")
harmless from any loss, liability, claim or expense that you may
incur or suffer as a result of a breach by the Company or any
Subsidiary, as the case may be, of this covenant other than as a
result of the gross negligence or willful misconduct of such
Indemnified Person. The Company shall not be deemed to have
breached or violated this paragraph 5G if the Company or any
Subsidiary is challenging in good faith by appropriate
proceedings diligently pursued the application or enforcement of
such Environmental Requirements for which adequate reserves have
been established in accordance with generally accepted accounting
principles.
5H. No Integration. The Company covenants that it has
taken and will take all necessary action so that the issuance of
the Notes does not and will not require registration under the
Securities Act. The Company covenants that no future offer and
sale of debt securities of the Company of any class will be made
if there is a reasonable possibility that such offer and sale
would, under the doctrine of "integration", subject the issuance
of the Notes to you to the registration requirements of the
Securities Act.
5I. Financial Records. The Company covenants that it and
each Subsidiary will, keep proper books of record and account in
which full and correct entries (subject to normal year end
adjustments and, as to interim statements, the absence of
footnotes) will be made of the business and affairs of the
Company or such Subsidiary under generally accepted accounting
principles consistently applied (except for changes disclosed in
the financial statements furnished to you pursuant to paragraph
5A and concurred in by the independent public accountants
referred to in paragraph 5A).
6. NEGATIVE COVENANTS. Unless the Required Holders
otherwise agree in writing, the Company shall not, and shall not
permit any Subsidiary, to take any of the following actions or
permit the occurrence or existence of any of the following events
or conditions:
6A. Fixed Charge Coverage and Debt Limits. The Company
covenants that it will not permit at any time:
(i) Consolidated Fixed Charges to exceed 125% of
the sum of (a) Consolidated Net Income plus (b)
Consolidated Fixed Charges plus (c) income taxes due
and payable or paid for the most recently ended four
fiscal quarter period; or
(ii) Consolidated Funded Debt to exceed 60% of
Consolidated Total Capitalization.
6B. Subsidiary Debt. The Company will not permit any
Restricted Subsidiary to create, incur, assume or suffer to exist
any Debt, except:
(i) Debt of any such Restricted Subsidiary to the
Company or another Restricted Subsidiary; and
(ii) other Debt of any such Restricted Subsidiary,
provided that the sum (without duplication) of the
aggregate unpaid amount of all outstanding Debt of such
Restricted Subsidiaries permitted by this clause (ii)
does not at any time exceed 15% of Consolidated
Tangible Net Worth.
6C. Liens, Debt and Other Restrictions. The Company
covenants that it will not and will not permit any Restricted
Subsidiary to:
6C(1) Liens. Create, assume or suffer to exist any Lien
upon any of its property or assets, whether now owned or
hereafter acquired (whether or not provision is made for the
equal and ratable securing of the Notes pursuant to paragraph
5C), except:
(i) Liens existing on the Series B Closing Day
and specified on Schedule 6C(1);
(ii) Liens for taxes (including ad valorem and
property taxes) and assessments or governmental charges
or levies not yet due or which are being actively
contested in good faith by appropriate proceedings;
(iii) other Liens incidental to the conduct of
its business or the maintenance, operation,
construction or ownership of its property and assets
(including pledges or deposits in connection with
workers' compensation and social security taxes,
assessments and charges, and landlords, mechanics and
materialmen Liens and survey exceptions or
encumbrances, easements or reservations, rights-of-way,
or zoning restrictions) provided that (A) such Liens
were not incurred in connection with the borrowing of
money, or the obtaining of advances or credit or the
payment of the deferred purchase price of property and
(B) the existence of such Lien does not materially
detract from the value of such property or assets to
the Company or any Subsidiary or unreasonably interfere
with the ordinary conduct of business;
(iv) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of
business to secure (or to obtain letters of credit that
secure) the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
performance bonds, purchase, construction or sales
contracts and other similar obligations, in each case
not incurred or made in connection with any Debt;
(v) any Lien created to secure all or any part of
the purchase price incurred or assumed to pay all or
any part of the purchase price of property acquired by
the Company or a Restricted Subsidiary after the date
of this Agreement, provided that:
(A) any such Lien shall be confined solely
to the item or items of property so acquired and,
if required by the terms of the instrument
originally creating such Lien, other property
which is an improvement to or for specific use
with such acquired property; and
(B) the principal amount of the Debt secured
by any such Lien shall at no time exceed 100% of
the lesser of (1) the cost to the Company or such
Restricted Subsidiary of the property acquired and
(2) the Fair Market Value of such property (as
determined in good faith by the Company's Board)
at the time of such acquisition;
(vi) Liens securing Capitalized Lease Obligations,
provided such Liens are limited to the property subject
to such leases;
(vii) any right of set off or banker's lien
(whether by common law, statute, contract or otherwise)
in connection with ordinary course of business deposit
arrangements maintained by the Company or its
Subsidiaries with its banks or other financial
institutions so long as any such bank or other
financial institution (A) shall not at any time make
loans or otherwise extend credit to the Company or any
Subsidiary, (B) does not maintain accounts (for the
deposit of cash or otherwise) for the benefit of the
Company or any Subsidiary, or (C) shall have waived in
writing for the benefit of each holder of a Note such
right of setoff or banker's lien; or
(viii) any Lien renewing, extending, or
refunding any outstanding obligations secured by a Lien
described in clause (i), provided the principal amount
secured is not increased and such Lien is not extended
to any other property of the Company or its Restricted
Subsidiaries;
(ix) Liens securing judgments rendered against the
Company or any of its Restricted Subsidiaries or
arising in connection with any court proceedings,
provided (i) such Liens are being contested in good
faith by appropriate proceedings and (ii) no action has
been taken by any Person to execute or otherwise
collect on such Lien;
(x) Liens securing Debt, held by the Company in
any Restricted Subsidiary or Debt held by any
Restricted Subsidiary in any other Restricted
Subsidiary; and
(xi) additional Liens securing Debt, provided that
after giving effect to such Liens, such Debt shall not
exceed 15% of Consolidated Tangible Net Worth at any
time.
6C(2) Merger or Consolidation. Merge, consolidate or
exchange shares with any other Person, except that:
(i) any Restricted Subsidiary may merge or
consolidate with the Company or any other Restricted
Subsidiary; or
(ii) the Company may merge or consolidate with any
other corporation (including a Subsidiary) provided (A)
the acquiring corporation shall be a solvent
corporation existing under the laws of the United
States or any State thereof (including the District of
Columbia), and such corporation (1) shall have executed
and delivered to each holder of any Note its assumption
of the due and punctual performance and observance of
each covenant and condition of this Agreement and the
Notes and (2) shall have caused to be delivered to each
holder of any Note (a) an opinion of nationally
independent counsel, or other independent counsel
reasonably satisfactory to the Required Holders, to the
effect that all agreements and instruments effecting
such assumption and reaffirmation are enforceable in
accordance with their terms and comply with the terms
hereof, which opinion shall be reasonably satisfactory
to the holders of the Notes in all respects and (b)
such other agreements and instruments which the holders
of the Notes may reasonably request, and (B)
immediately after giving effect to such transaction, no
Default or Event of Default shall occur or exist.
6C(3) Transactions with Related Party. Effect any
transaction with any Affiliate or Subsidiary by which any asset
or services of the Company or a Restricted Subsidiary of the
Company is transferred to such Affiliate or Subsidiary, or from
such Affiliate or Subsidiary or enter into any other transaction
with an Affiliate or Subsidiary, on terms more favorable than
would be reasonably expected to be given in a similar transaction
with an unrelated entity.
6D. Sale of Property. The Company will not, and will not
permit any Restricted Subsidiary to, Dispose of any Property or
assets, except:
(i) The Company or any Restricted Subsidiary may
sell inventory in the ordinary course of business for
Fair Market Value;
(ii) any Restricted Subsidiary may Dispose of its
assets to the Company or a Restricted Subsidiary;
(iii) the Company or any Restricted Subsidiary
may Dispose of its assets (whether or not leased back)
so long as, immediately after giving effect to such
proposed Disposition:
(A) the consideration for such assets
represents the Fair Market Value of such assets
(as determined in good faith by the Company's
Board) at the time of such Disposition; and
(B) the net book value of all assets so
Disposed of by the Company and its Restricted
Subsidiaries during the prior 12 months, does not
constitute a Substantial Part of the Consolidated
assets; and
(C) no Default or Event of Default shall
exist;
provided, however, if after any Disposition, the
Company shall, within 12 months of the date of such
Disposition, apply the proceeds (net of reasonable
expenses) from such Disposition to (1) acquire
operating assets and equipment to be used in the
business of the Company and its Restricted Subsidiaries
or (2) repay Funded Debt, such portion so applied shall
not be included in the calculation of Substantial Part.
For purposes of this paragraph 6D:
(i) "Dispose" means the sale, lease, transfer or
other disposition of property or assets (including
without limitation any stock of a Subsidiary) of the
Company or any of its Restricted Subsidiaries, and
"Disposition" and "Disposed of" has a corresponding
meaning to Dispose;
(ii) Calculation of net book value. The net book
value of any assets shall be determined as of the
respective date of Disposition of those assets; and
(iii) Sales of less than all the stock of a
Subsidiary. In the case of the sale or issuance of the
stock of a Subsidiary, the amount of Consolidated
Assets contributed by the stock Disposed of shall be
assumed to be the percentage of outstanding stock sold
or to be sold.
6E. Subsidiary Stock and Debt. The Company will not:
(i) directly or indirectly sell, assign, pledge
or otherwise dispose of any Debt of or any shares of
stock of (or warrants, rights or options to acquire
stock of) any Subsidiary except to a Restricted
Subsidiary except as permitted pursuant to paragraph
6D;
(ii) permit any Subsidiary directly or indirectly
to sell, assign, pledge or otherwise dispose of any
Debt of the Company or any other Subsidiary, or any
shares of stock of (or warrants, rights or options to
acquire stock of) any other Subsidiary, except to the
Company or a Restricted Subsidiary and except pursuant
to paragraph 6D;
(iii) permit any Subsidiary to have
outstanding any shares of Preferred Stock other than
Preferred Stock owned by the Company or a Restricted
Subsidiary;
(iv) permit any Subsidiary directly or indirectly
to issue or sell any shares of its stock (or warrants,
rights or options to acquire its stock) except to the
Company or a Restricted Subsidiary and except as
permitted pursuant to paragraph 6C(2) and 6D; or
(v) permit any Subsidiary to enter into or
otherwise be bound by or subject to any contract or
agreement (including, without limitation, any provision
of its certificate or articles of incorporation or
bylaws) that restricts its ability to pay dividends or
other distributions on account of its stock; or
(vi) permit any Subsidiary to create, incur,
assume or maintain any Debt except as permitted by
paragraph 6B.
6F. ERISA. The Company covenants that it will not nor
permit any Subsidiary to:
(i) terminate or withdraw from any Plan resulting
in the incurrence of any material liability to the
Pension Benefit Guaranty Corporation;
(ii) engage in or permit any Person to engage in
any prohibited transaction (as defined in Section 4975
of the Code) involving any Plan (other than a
Multiemployer Plan) which would subject the Company or
any Subsidiary to any material tax, penalty or other
liability;
(iii) incur or suffer to exist any material
accumulated funding deficiency (as defined in section
302 of ERISA and section 412 of the Code), whether or
not waived, involving any Plan (other than a
Multiemployer Plan); or
(iv) allow or suffer to exist any risk or
condition which presents a risk of incurring a material
liability to the Pension Benefit Guaranty Corporation.
6G. Environmental Matters. The Company covenants that it
will not, and will not permit any Third Party to, use, produce,
manufacture, process, generate, store, dispose of, manage at, or
ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials used, produced, released
or managed in the ordinary course of business in compliance with
all applicable Environmental Requirements except where the
failure to do so could not reasonably be expected to have a
material adverse effect on the business, operations or financial
condition of the Company and its Subsidiaries taken as a whole
and except for Hazardous Materials released in amounts which do
not require remediation pursuant to applicable Environmental
Requirements or if remediation is required, such remediation
could not reasonably be expected to have a material adverse
effect on the business, operations or financial condition of the
Company and its Subsidiaries taken as a whole.
6H. Specified Laws. Neither the Company nor any agent
acting on its behalf will take any action which could reasonably
be expected to cause this Agreement or the Notes to violate
Regulation G, Regulation T or any other regulation of the Board
of Governors of the Federal Reserve System or to violate the
Exchange Act, in any case as in effect now or as the same may
hereafter be in effect.
7. EVENTS OF DEFAULT.
7A. Acceleration. If any of the following events shall
occur and be continuing for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about
or be effected by operation of law or otherwise):
(i) the Company defaults in the payment of any
principal of, or Yield-Maintenance Amount payable with
respect to, any Note when the same shall become due,
either by the terms thereof or otherwise as herein
provided; or
(ii) the Company defaults in the payment of any
interest on any Note for more than 10 days after the
date due; or
(iii) the Company or any Subsidiary defaults
(whether as primary obligor or as guarantor or other
surety) in any payment of principal of or interest on
any other obligation for money borrowed (or any
Capitalized Lease Obligation, any obligation under a
conditional sale or other title retention agreement,
any obligation issued or assumed as full or partial
payment for property whether or not secured by a
purchase money mortgage or any obligation under notes
payable or drafts accepted representing extensions of
credit) beyond any period of grace provided with
respect thereto, or the Company or any Subsidiary fails
to perform or observe any other agreement, term or
condition contained in any agreement under which any
such obligation is created (or if any other event
thereunder or under any such agreement shall occur and
be continuing) and the effect of such failure or other
event is to cause, or to permit the holder or holders
of such obligation (or a trustee on behalf of such
holder or holders) to cause, such obligation to become
due (or to be repurchased by the Company or any
Subsidiary) prior to any stated maturity, provided that
the aggregate amount of all obligations as to which
such a payment default shall occur and be continuing or
such a failure or other event causing or permitting
acceleration (or resale to the Company or any
Subsidiary) shall occur and be continuing exceeds
$5,000,000; or
(iv) any representation or warranty made by the
Company herein or by the Company or any of its officers
in any writing furnished in connection with or pursuant
to this Agreement shall be false in any material
respect on the date as of which made; or
(v) the Company fails to perform or observe any
agreement contained in paragraph 6; or
(vi) the Company fails to perform or observe any
other agreement, term or condition contained herein and
such failure shall not be remedied within 30 days after
any Responsible Officer obtains actual knowledge
thereof; or
(vii) the Company or any Subsidiary makes an
assignment for the benefit of creditors or is generally
not paying its debts as such debts become due; or
(viii) any decree or order for relief in respect
of the Company or any Subsidiary is entered under any
bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt, dissolution or
liquidation or similar law, whether now or hereafter in
effect (herein called the "Bankruptcy Law"), of any
jurisdiction; or
(ix) the Company or any Subsidiary petitions or
applies to any tribunal for, or consents to, the
appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or similar official of
the Company or any Subsidiary, or of any substantial
part of the assets of the Company or any Subsidiary, or
commences a voluntary case under the Bankruptcy Law of
the United States or any proceedings (other than
proceedings for the voluntary liquidation and
dissolution of a Subsidiary) relating to the Company or
any Subsidiary under the Bankruptcy Law of any other
jurisdiction; or
(x) any such petition or application is filed,
or any such proceedings are commenced, against the
Company or any Subsidiary and the Company or such
Subsidiary by any act indicates its approval thereof,
consent thereto or acquiescence therein, or an order,
judgment or decree is entered appointing any such
trustee, receiver, custodian, liquidator or similar
official, or approving the petition in any such
proceedings, and such order, judgment or decree remains
unstayed and in effect for more than 30 days; or
(xi) any order, judgment or decree is entered in
any proceedings against the Company decreeing the
dissolution of the Company and such order, judgment or
decree remains unstayed and in effect for more than 60
days; or
(xii) any order, judgment or decree is entered in
any proceedings against the Company or any Subsidiary
decreeing a split-up of the Company or such Subsidiary
which requires the divestiture of assets representing a
Substantial Part, or the divestiture of the stock of a
Subsidiary whose assets represent a Substantial Part,
of the consolidated assets of the Company and its
Subsidiaries (determined in accordance with generally
accepted accounting principles) or which requires the
divestiture of assets, or stock of a Subsidiary, which
shall have contributed a Substantial Part of the
consolidated net income of the Company and its
Subsidiaries (determined in accordance with generally
accepted accounting principles) for any of the three
fiscal years then most recently ended, and such order,
judgment or decree remains unstayed and in effect for
more than 60 days; or
(xiii) one or more final judgments in an aggregate
amount in excess of $5,000,000 is rendered against the
Company or any Subsidiary and, within 60 days after
entry thereof, any such judgment is not discharged or
execution thereof stayed pending appeal, or within 60
days after the expiration of any such stay, such
judgment is not discharged; or
(xiv) the Company or any ERISA Affiliate, in its
capacity as an employer under a Multiemployer Plan,
makes a complete or partial withdrawal from such
Multiemployer Plan resulting in the incurrence by such
withdrawing employer of a withdrawal liability in an
amount exceeding $5,000,000;
then:
(a) if such event is an Event of Default
specified in clause (i) or (ii) of this paragraph
7A, the holder of any Note (other than the Company
or any of its Subsidiaries) may at its option
during the continuance of such Event of Default,
by notice in writing to the Company, terminate the
Facility and/or declare all of the Notes held by
such holder to be, and all of the Notes held by
such holder shall thereupon be and become,
immediately due and payable at par together with
interest accrued thereon, without presentment,
demand, protest or notice of any kind, all of
which are hereby waived by the Company,
(b) if such event is an Event of Default
specified in clause (viii), (ix) or (x) of this
paragraph 7A with respect to the Company, the
Facility shall automatically terminate and all of
the Notes at the time outstanding shall
automatically become immediately due and payable
together with interest accrued thereon and
together with the Yield-Maintenance Amount, if
any, with respect to each Note, without
presentment, demand, protest or notice of any
kind, all of which are hereby waived by the
Company, and
(c) with respect to any event constituting an
Event of Default, the Required Holder(s) of the
Notes of any Series may at its or their option
during the continuance of such Event of Default,
by notice in writing to the Company, terminate the
Facility and declare all of the Notes of such
Series to be, and all of the Notes of such Series
shall thereupon be and become, immediately due and
payable together with interest accrued thereon and
together with the Yield-Maintenance Amount, if
any, with respect to each Note of such Series,
without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the
Company.
7B. Rescission of Acceleration. At any time after any or
all of the Notes of any Series shall have been declared
immediately due and payable pursuant to paragraph 7A, the
Required Holder(s) of the Notes of such Series may, by notice in
writing to the Company, rescind and annul such declaration and
its consequences if:
(i) the Company shall have paid all overdue
interest on the Notes of such Series, the principal of
and Yield-Maintenance Amount, if any, payable with
respect to any Notes of such Series which have become
due otherwise than by reason of such declaration, and
interest on such overdue interest and overdue principal
and Yield-Maintenance Amount at the rate specified in
the Notes of such Series,
(ii) the Company shall not have paid any amounts
which have become due solely by reason of such
declaration,
(iii) all Events of Default and Defaults, other
than non-payment of amounts which have become due
solely by reason of such declaration, shall have been
cured or waived pursuant to paragraph 11C, and
(iv) no judgment or decree shall have been entered
for the payment of any amounts due pursuant to the
Notes of such Series or this Agreement.
No such rescission or annulment shall extend to or affect any
subsequent Event of Default or Default or impair any right
arising therefrom.
7C. Notice of Acceleration or Rescission. Whenever any
Note shall be declared immediately due and payable pursuant to
paragraph 7A or any such declaration shall be rescinded and
annulled pursuant to paragraph 7B, the Company shall forthwith
give written notice thereof to the holder of each Note of each
Series at the time outstanding.
7D. Other Remedies. If any Event of Default or Default
shall occur and be continuing, the holder of any Note may proceed
to protect and enforce its rights under this Agreement and such
Note by exercising such remedies as are available to such holder
in respect thereof under applicable law, either by suit in equity
or by action at law, or both, whether for specific performance of
any covenant or other agreement contained in this Agreement or in
aid of the exercise of any power granted in this Agreement. No
remedy conferred in this Agreement upon the holder of any Note is
intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every
other remedy conferred herein or now or hereafter existing at law
or in equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as follows (all references to
"Subsidiary" and "Subsidiaries" in this paragraph 8 shall be
deemed omitted if the Company has no Subsidiaries at the time the
representations herein are made or repeated):
8A. Organization. The Company is a corporation duly
organized and existing in good standing under the laws of the
State of North Carolina and each Subsidiary is duly organized and
existing in good standing under the laws of the jurisdiction in
which it is incorporated. Schedule 8A hereto is an accurate and
complete list of all Subsidiaries as of the Series B Closing Day,
including the jurisdiction of incorporation and ownership of all
such Subsidiaries. The Company and each Subsidiary has the
corporate power to own its respective properties and to carry on
its respective businesses as now being conducted and is duly
qualified and authorized to do business in each other
jurisdiction in which the character of its respective properties
or the nature of its respective businesses require such
qualification or authorization except where the failure to be so
qualified or authorized could not reasonably be expected to have
a material adverse effect on the business, operations or
financial condition of the Company and its Subsidiaries, taken as
a whole.
8B. Financial Statements. The Company has furnished each
Purchaser with the following financial statements, identified by
a principal financial officer of the Company:
(i) a Consolidated balance sheet as at the last
day of the fiscal year in each of the years 1992 to
1996, inclusive, a Consolidated statement of income and
retained earnings and statements of cash flows for each
such year, all reported on by Arthur Andersen LLP; and
(ii) a Consolidated balance sheet as at December
29, 1996 and Consolidated statements of income and
retained earnings and statements of cash flows for the
three-month period ended on such date, prepared by the
Company.
Those financial statements (including any related schedules
and/or notes) fairly present in all material respects (subject,
as to interim statements, to the absence of footnotes or to
changes resulting from normal year-end adjustments), the
financial condition of the Company and have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved and show all
liabilities, direct and contingent, of the Company and its
Subsidiaries required to be shown in accordance with such
principles. The balance sheets and related footnotes fairly
present, in all material respects, the Consolidated financial
condition of the Company and its Subsidiaries as at the dates
thereof, and the statements of income and retained earnings and
statements of cash flows and related footnotes fairly present, in
all material respects, the Consolidated results of the operations
of the Company and its Subsidiaries, the changes in the Company's
stockholders' equity and their Consolidated cash flows for the
periods indicated. There has been no material adverse change in
the business, condition (financial or otherwise) or operations of
the Company and its Subsidiaries taken as a whole since September
29, 1996.
8C. Actions Pending. There is no action, suit,
investigation or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its
Subsidiaries, or any properties or rights of the Company or any
of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which might result in any
material adverse change in the business, property or assets,
condition (financial or otherwise) or operations of the Company
and its Subsidiaries taken as a whole.
8D. Outstanding Debt. Neither the Company nor any of its
Restricted Subsidiaries has outstanding any Debt except as
permitted by paragraph 6A(ii) or 6B. There exists no default
under the provisions of any instrument evidencing such Debt or of
any agreement relating thereto. Schedule 8D hereto (as such
Schedule 8D may have been modified from time to time by written
supplements thereto delivered by the Company to Prudential) is an
accurate and complete list of Debt of the Company and its
Subsidiaries on the applicable Closing Day.
8E. Title to Properties. The Company has and each of its
Subsidiaries has good and indefeasible title to its respective
real properties (other than properties which it leases) and good
title to all of its other respective properties and assets,
including the properties and assets reflected in the most recent
audited balance sheet referred to in paragraph 8B (other than
properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted
by paragraph 6C(1). All leases necessary in any material respect
for the conduct of the respective businesses of the Company and
its Subsidiaries are valid and subsisting and are in full force
and effect.
8F. Taxes. The Company has and each of its Subsidiaries
has filed all federal, state and other income tax returns which,
to the best knowledge of the officers of the Company and its
Subsidiaries, are required to be filed, and each has paid all
taxes as shown on such returns and on all assessments received by
it to the extent that such taxes have become due, except such
taxes as are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in
accordance with generally accepted accounting principles.
8G. Conflicting Agreements and Other Matters. Neither the
Company nor any of its Subsidiaries is a party to any contract or
agreement or subject to any charter or other corporate
restriction which materially and adversely affects its business,
property or assets, condition (financial or otherwise) or
operations. Neither the execution nor delivery of this Agreement
or the Notes, nor the offering, issuance and sale of the Notes,
nor fulfillment of nor compliance with the terms and provisions
hereof and of the Notes will conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the
Company or any of its Subsidiaries pursuant to, the charter or
by-laws of the Company or any of its Subsidiaries, any award of
any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law,
rule or regulation to which the Company or any of its
Subsidiaries is subject. Neither the Company nor any of its
Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Debt of the Company or
such Subsidiary, any agreement relating thereto or any other
contract or agreement (including its charter) which limits the
amount of, or otherwise imposes restrictions on the incurring of,
Debt of the Company of the type to be evidenced by the Notes
except as set forth in the agreements listed in Schedule 8G
attached hereto.
8H. Offering of Notes. Neither the Company nor any agent
acting on its behalf has, directly or indirectly, offered the
Notes or any similar security of the Company for sale to, or
solicited any offers to buy the Notes or any similar security of
the Company from, or otherwise approached or negotiated with
respect thereto with, any Person other than institutional
investors, and neither the Company nor any agent acting on its
behalf has taken or will take any action which would subject the
issuance or sale of the Notes to the provisions of Section 5 of
the Securities Act or to the provisions of any securities or Blue
Sky law of any applicable jurisdiction. The Company hereby
represents and warrants to each Purchaser that, within the
preceding twelve months, neither the Company nor any other Person
acting on behalf of the Company has offered or sold to any Person
(other than accredited investors) any Notes, or any securities of
the same or a similar class as the Notes, or any substantially
similar securities of the Company.
8I. Use of Proceeds. The proceeds of sale of the Series B
Notes will be used to repay certain existing long term and short
term Debt of the Company. None of the proceeds of the sale of
any Notes of the Company in whole or in part will be used,
directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any margin
stock as defined in Regulation G (12 CFR Part 207) of the Board
of Governors of the Federal Reserve System (herein called "margin
stock") or for the purpose of maintaining, reducing or retiring
any Debt which was originally incurred to purchase or carry any
stock that is then currently a margin stock or for any other
purpose which might constitute the purchase of such Notes a
"purpose credit" within the meaning of such Regulation G, unless
the Company shall have delivered to the Purchaser which is
purchasing such Notes, on the Closing Day for such Notes, an
opinion of counsel satisfactory to such Purchaser stating that
the purchase of such Notes does not constitute a violation of
such Regulation G. Neither the Company nor any agent acting on
its behalf has taken or will take any action which might cause
this Agreement or the Notes to violate Regulation G, Regulation T
or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the Exchange Act, in each case as in
effect now or as the same may hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined
in section 302 of ERISA and section 412 of the Code), whether or
not waived, exists with respect to any Plan (other than a
Multiemployer Plan). No liability to the Pension Benefit
Guaranty Corporation has been or is expected by the Company or
any ERISA Affiliate to be incurred with respect to any Plan
(other than a Multiemployer Plan) by the Company, any Subsidiary
or any ERISA Affiliate which is or would be materially adverse to
the business, property or assets, condition (financial or
otherwise) or operations of the Company and its Subsidiaries
taken as a whole. Neither the Company, any Subsidiary nor any
ERISA Affiliate has incurred or presently expects to incur any
withdrawal liability under Title IV of ERISA with respect to any
Multiemployer Plan which is or would be materially adverse to the
business, property or assets, condition (financial or otherwise)
or operations of the Company and its Subsidiaries taken as a
whole. The execution and delivery of this Agreement and the
issuance and sale of the Notes will be exempt from, or will not
involve any transaction which is subject to, the prohibitions of
section 406 of ERISA and will not involve any transaction in
connection with which a penalty could be imposed under section
502(i) of ERISA or a tax could be imposed pursuant to section
4975 of the Code. The representation by the Company in the next
preceding sentence is made in reliance upon and subject to the
accuracy of each Purchaser's representation in paragraph 9B as to
the source of funds to be used by it to purchase any Notes.
8K. Governmental Consent. Neither the nature of the
Company or of any Subsidiary, nor any of their respective
businesses or properties, nor any relationship between the
Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or
delivery of the Notes is such as to require any authorization,
consent, approval, exemption or other action by or notice to or
filing with any court or administrative or governmental body
(other than routine filings after the Closing Day for any Notes
with the Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and delivery of
this Agreement, the offering, issuance, sale or delivery of the
Notes or fulfillment of or compliance with the terms and
provisions hereof or of the Notes.
8L. Environmental Compliance.
(i) The Company and its Subsidiaries and all of
their respective Properties have complied at all times
and in all respects with all Environmental Requirements
where failure to comply could reasonably be expected to
have a material adverse effect on the business,
condition (financial or otherwise) or operations of the
Company and its Subsidiaries taken as a whole.
(ii) Neither the Company nor any Subsidiary is
subject to any Environmental Liability or Environmental
Requirement which could reasonably be expected to have
a material adverse effect on the business, condition
(financial or otherwise) or operations of the Company
and its Subsidiaries, taken as a whole.
(iii) Except as otherwise disclosed in
Schedule 8L, neither the Company nor any Subsidiary has
been designated as a potentially responsible party
under CERCLA or under any state statute similar to
CERCLA. None of the Properties has been identified on
any current or proposed National Priorities List under
40 C.F.R. Section 300 or any list arising from a state
statute similar to CERCLA. None of the Properties has
been identified on any CERCLIS list.
(iv) No Hazardous Materials have been or are being
used, produced, manufactured, processed, generated,
stored, disposed of, released, managed at or shipped or
transported to or from the Properties or are otherwise
present at, on, in or under the Properties or, to the
actual knowledge of the Company, at or from any
adjacent site or facility, except for Hazardous
Materials used, produced, manufactured, processed,
generated, stored, disposed of, released and managed in
the ordinary course of business in compliance with all
applicable Environmental Requirements and except for
Hazardous Materials present in amounts which have not
required and do not require remediation, pursuant to
applicable law or regulation, or if remediation is
required, such remediation could not reasonably be
expected to have a material adverse effect on the
business, condition (financial or otherwise) or
operations of the Company and its Subsidiaries, taken
as a whole.
(v) The Company and each Subsidiary have procured
all permits necessary under Environmental Requirements
for the conduct of their respective businesses or is
otherwise in compliance with all applicable
Environmental Requirements, except to the extent the
failure to do so could not reasonably be expected to
have a material adverse effect on the business,
condition (financial or otherwise) or operations of the
Company and its Subsidiaries, taken as a whole.
8M. Disclosure. Neither this Agreement nor any other
document, certificate or statement furnished to any Purchaser by
or on behalf of the Company in connection herewith contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein
and therein not misleading. There is no fact peculiar to the
Company or any of its Subsidiaries which materially adversely
affects or in the future may (so far as the Company can now
foresee) materially adversely affect the business, property or
assets, condition (financial or otherwise) or operations of the
Company or any of its Subsidiaries and which has not been set
forth in this Agreement.
8N. Hostile Tender Offers. None of the proceeds of the
sale of any Notes have been or will be used to finance a Hostile
Tender Offer.
9. REPRESENTATIONS OF EACH PURCHASER.
Each Purchaser represents as follows:
9A. Nature of Purchase. Such Purchaser is not acquiring
the Notes purchased by it hereunder with a view to or for sale in
connection with any distribution thereof within the meaning of
the Securities Act, provided that the disposition of such
Purchaser's property shall at all times be and remain within its
control.
9B. Source of Funds. Such Purchaser represents that at
least one of the following statements is an accurate
representation as to each source of funds (a "Source") to be used
by such Purchaser to pay the purchase price of the Notes to be
purchased by such Purchaser hereunder:
(a) if Purchaser is an insurance company, the
Source does not include assets allocated to any
separate account maintained by Purchaser in which any
employee benefit plan (or its related trust) has any
interest, other than a separate account that is
maintained solely in connection with your fixed
contractual obligations under which the amounts
payable, or credited, to such plan and to any
participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the
investment performance of the separate account; or
(b) the Source is either (i) an insurance company
pooled separate account, within the meaning of
Prohibited Transaction Exemption ("PTE") 90-1 (issued
January 29, 1990), or (ii) a bank collective investment
fund, within the meaning of the PTE 91-38 (issued July
12, 1991) and, except as you have disclosed to the
Company in writing pursuant to this paragraph (b), no
employee benefit plan or group of plans maintained by
the same employer or employee organization beneficially
owns more than 10% of all assets allocated to such
pooled separate account or collective investment fund;
or
(c) the Source constitutes assets of an
"investment fund" (within the meaning of Part V of the
QPAM Exemption) managed by a "qualified professional
asset manager" or "QPAM" (within the meaning of Part V
of the QPAM Exemption), no employee benefit plan's
assets that are included in such investment fund, when
combined with the assets of all other employee benefit
plans established or maintained by the same employer or
by an affiliate (within the meaning of Section V(c)(1)
of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed
20% of the total client assets managed by such QPAM,
the conditions of Part I(c) and (g) of the QPAM
Exemption are satisfied, neither the QPAM nor a person
controlling or controlled by the QPAM (applying the
definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the company
and (i) the identity of such QPAM and (ii) the names of
all employee benefit plans whose assets are included in
such investment fund have been disclosed to the Company
in writing pursuant to clause (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit
plans, or a separate account or trust fund comprised of
one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to
this clause (e); or
(f) the Source does not include assets of any
employee benefit plan, other than a plan exempt from
the coverage of ERISA.
As used in this paragraph 9B, the terms "employee benefit plan",
"governmental plan", "party in interest", and "separate account"
shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
10. DEFINITIONS; ACCOUNTING MATTERS. For the purpose of
this Agreement, the terms defined in paragraphs 10A and 10B (or
within the text of any other paragraph) shall have the respective
meanings specified therein and all accounting matters shall be
subject to determination as provided in paragraph 10C.
10A. Yield-Maintenance Terms.
"Called Principal" shall mean, with respect to any
Note, the principal of such Note that is to be prepaid pursuant
to paragraph 4B or is declared to be immediately due and payable
pursuant to paragraph 7A, as the context requires.
"Designated Spread" shall mean 0% in the case of each
Note of any Series unless the Confirmation of Acceptance with
respect to the Notes of such Series specifies a different
Designated Spread, in which case it shall mean, with respect to
each Note of such Series, the Designated Spread so specified.
"Discounted Value" shall mean, with respect to the
Called Principal of any Note, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
factor (as converted to reflect the periodic basis on which
interest on the Notes is payable, if payable other than on a
semi-annual basis) equal to the Reinvestment Yield with respect
to such Called Principal.
"Reinvestment Yield" shall mean, with respect to the
Called Principal of any Note, the Designated Spread over the
yield to maturity implied by (i) the yields reported, as of 10:00
a.m. (New York City local time) on the Business Day next
preceding the Settlement Date with respect to such Called
Principal, on the display designated as "Page 678" on the
Telerate Service (or such other display as may replace Page 678
on the Telerate Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or (ii) if
such yields shall not be reported as of such time or the yields
reported as of such time shall not be ascertainable, the Treasury
Constant Maturity Series yields reported, for the latest day for
which such yields shall have been so reported as of the Business
Day next preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively
traded U.S. Treasury securities having a constant maturity equal
to the Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield shall be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported
for various maturities.
"Remaining Average Life" shall mean, with respect to
the Called Principal of any Note, the number of years (calculated
to the nearest one-twelfth year) obtained by dividing (i) such
Called Principal into (ii) the sum of the products obtained by
multiplying (a) each Remaining Scheduled Payment of such Called
Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" shall mean, with respect
to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due on or after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled
due date.
"Settlement Date" shall mean, with respect to the
Called Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to paragraph 4B or is
declared to be immediately due and payable pursuant to paragraph
7A, as the context requires.
"Yield-Maintenance Amount" shall mean, with respect to
any Note, an amount equal to the excess, if any, of the
Discounted Value of the Called Principal of such Note over the
sum of (i) such Called Principal plus (ii) interest accrued
thereon as of (including interest due on) the Settlement Date
with respect to such Called Principal. The Yield-Maintenance
Amount shall in no event be less than zero.
10B. Other Terms.
"Acceptance" shall have the meaning specified in
paragraph 2B(5).
"Acceptance Day" shall have the meaning specified in
paragraph 2B(5).
"Acceptance Window" shall have the meaning specified in
paragraph 2B(5).
"Accepted Note" shall have the meaning specified in
paragraph 2B(5).
"Affiliate" shall mean any Person directly or
indirectly controlling, controlled by, or under direct or
indirect common control with, the Company, except a Subsidiary.
A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract
or otherwise.
"Authorized Officer" shall mean (i) in the case of the
Company, its chief executive officer, its chief financial
officer, its principal accounting officer, any vice president of
the Company designated as an "Authorized Officer" of the Company
in the Information Schedule attached hereto or any vice president
of the Company designated as an "Authorized Officer" of the
Company for the purpose of this Agreement in an Officer's
Certificate executed by the Company's chief executive officer or
chief financial officer and delivered to Prudential, and (ii) in
the case of Prudential, any officer of Prudential designated as
its "Authorized Officer" in the Information Schedule or any
officer of Prudential designated as its "Authorized Officer" for
the purpose of this Agreement in a certificate executed by one of
its Authorized Officers. Any action taken under this Agreement
on behalf of the Company by any individual who on or after the
date of this Agreement shall have been an Authorized Officer of
the Company and whom Prudential in good faith believes to be an
Authorized Officer of the Company at the time of such action
shall be binding on the Company even though such individual shall
have ceased to be an Authorized Officer of the Company, and any
action taken under this Agreement on behalf of Prudential by any
individual who on or after the date of this Agreement shall have
been an Authorized Officer of Prudential and whom the Company in
good faith believes to be an Authorized Officer of Prudential at
the time of such action shall be binding on Prudential even
though such individual shall have ceased to be an Authorized
Officer of Prudential.
"Available Facility Amount" shall have the meaning
specified in paragraph 2B(1).
"Bankruptcy Law" shall have the meaning specified in
clause (viii) of paragraph 7A.
"Business Day" shall mean any day other than (i) a
Saturday, a Sunday, (ii) a day on which commercial banks in New
York City are required or authorized to be closed, (iii) for
purposes of paragraph 2B(3) hereof only, a day on which
Prudential is not open for business and (iv) for purposes of
paragraph 4A only, a day on which the Federal Reserve Bank is
closed.
"Cancellation Date" shall have the meaning specified in
paragraph 2B(8)(iv).
"Cancellation Fee" shall have the meaning specified in
paragraph 2B(8)(iv).
"Capitalized Lease Obligation" shall mean any rental
obligation which, under generally accepted accounting principles,
is or will be required to be capitalized on the books of the
Company or any Subsidiary, taken at the amount thereof accounted
for as indebtedness (net of interest expenses) in accordance with
such principles.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act.
"CERCLIS" shall mean the Comprehensive Environmental
Response, Compensation and Liability Inventory System established
pursuant to CERCLA.
"Closing Day" shall mean, with respect to the Series B
Notes, the Series B Closing Day and, with respect to any Accepted
Note, the Business Day specified for the closing of the purchase
and sale of such Accepted Note in the Request for Purchase of
such Accepted Note, provided that (i) if the Company and the
Purchaser which is obligated to purchase such Accepted Note agree
on an earlier Business Day for such closing, the "Closing Day"
for such Accepted Note shall be such earlier Business Day, and
(ii) if the closing of the purchase and sale of such Accepted
Note is rescheduled pursuant to paragraph 2B(7), the Closing Day
for such Accepted Note, for all purposes of this Agreement except
references to "original Closing Day" in paragraph 2B(8)(iii),
shall mean the Rescheduled Closing Day with respect to such
Accepted Note.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder from time to time.
"Confirmation of Acceptance" shall have the meaning
specified in paragraph 2B(5).
"Consolidated" shall mean, with respect to any item of
financial information, the item of financial information for the
Company and its Restricted Subsidiaries consolidated in
accordance with generally accepted accounting principles.
"Consolidated Fixed Charges" shall mean, for the
Company and its Subsidiaries on a Consolidated basis, the sum
(without duplication) of:
(i) all Rentals (excluding all principal
components of Rentals under Capitalized Lease
Obligations) paid during the most recently
completed four fiscal quarters (the "Prior
Period"); and
(ii) all Consolidated Interest Charges for
the Prior Period.
"Consolidated Interest Charges" shall mean, for the
Company and its Subsidiaries on a Consolidated basis for the four
fiscal quarters most recently ended, all interest expense (as
determined in accordance with generally accepted accounting
principles) on all Debt (including Capitalized Lease Obligations)
net of interest income.
"Consolidated Net Worth" shall mean, at any time, for
the Company and its Subsidiaries on a Consolidated basis
shareholders' equity at such time determined in accordance with
generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean
Consolidated Net Worth minus Intangibles.
"Consolidated Total Capitalization" shall mean, at any
time, the sum of (i) Consolidated Funded Debt at such time plus
(ii) Consolidated Net Worth at such time.
"Current Debt" shall mean, with respect to any Person,
all Debt of such Person which by its terms or by the terms of any
instrument or agreement relating thereto matures on demand or
within one year from the date of the creation thereof and is not
directly or indirectly renewable or extendible at the option of
the debtor to a date more than one year from the date of the
creation thereof, provided that (i) Debt outstanding under a
revolving credit or similar agreement which obligates the lender
or lenders to extend credit over a period of more than one year
shall constitute Funded Debt and not Current Debt, even though
such Debt by its terms matures on demand or within one year from
the date of the creation thereof and (ii) Current Maturities of
Funded Debt shall constitute Funded Debt and not Current Debt.
"Current Maturities of Funded Debt" shall mean the
portion of Funded Debt outstanding which by its terms is due on
demand or within one year and is not directly or indirectly
renewable, extendible or refundable at the option of the obligor
to a date more than one year from such time.
"Debt" with respect to any Person, shall mean, at any
time, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred
purchase price of property acquired by such Person
(excluding accounts payable arising in the
ordinary course of business but including, without
limitation, all liabilities created or arising
under any conditional sale or other title
retention agreement with respect to any such
property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money
secured by any Lien with respect to any property
owned by such Person (whether or not it has
assumed or otherwise become liable for such
liabilities); and
(e) any Guaranty of such Person with respect
to liabilities of a type described in any of
clauses (a) through (d) hereof.
Debt of any Person shall include all obligations of such Person
of the character described in clauses (a) through (e) to the
extent such Person remains legally liable in respect thereof
through defeasance of such Debt notwithstanding that any such
obligation is deemed to be extinguished under generally accepted
accounting principles.
"Delayed Delivery Fee" shall have the meaning specified
in paragraph 2B(8)(iii).
"Environmental Authority" shall mean any foreign,
federal, state, local or regional government that exercises any
form of jurisdiction or authority under any Environmental
Requirement.
"Environmental Judgments and Orders" shall mean all
judgments, decrees or orders arising from or in any way
associated with any Environmental Requirements, whether or not
entered upon consent or written agreements with an Environmental
Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated
in a judgment, degree or order.
"Environmental Liabilities" shall mean any liabilities,
whether accrued or contingent, arising from or relating in any
way to any Environmental Requirements.
"Environmental Notices" shall mean any written
communication from any Environmental Authority stating possible
or alleged noncompliance with or possible or alleged liability
under any Environmental Requirement, including without limitation
any complaints, citations, demands or requests from any
Environmental Authority for correction of any purported violation
of any Environmental Requirements or any investigation concerning
any purported violation of any Environmental Requirements.
Environmental Notices also shall mean (i) any written
communication from any other Person threatening litigation or
administrative proceedings against or involving the Company
relating to alleged violation of any Environmental Requirements
and (ii) any complaint, petition or similar documents filed by
any other Person commencing litigation or administrative
proceedings against or involving the Company relating to alleged
violation of any Environmental Requirements.
"Environmental Proceedings" shall mean any judicial or
administrative proceedings arising from or in any way associated
with any Environmental Requirement.
"Environmental Releases" shall mean releases (as
defined in CERCLA or under any applicable state or local
environmental law or regulation) of Hazardous Materials.
Environmental Releases does not include releases for which no
remediation or reporting is required by applicable Environmental
Requirements and which do not present a danger to health, safety
or the environment.
"Environmental Requirements" shall mean any applicable
local, state or federal law, rule, regulation, permit, order,
decision, determination or requirement relating in any way to
Hazardous Materials or to health, safety or the environment.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean any corporation which is a
member of the same controlled group of corporations as the
Company within the meaning of section 414(b) of the Code, or any
trade or business which is under common control with the Company
within the meaning of section 414(c) of the Code.
"Event of Default" shall mean any of the events
specified in paragraph 7A, provided that there has been satisfied
any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further
condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Facility" shall have the meaning specified in
paragraph 2B(1).
"Fair Market Value" means, at any time, the sale value
of property that would be realized in an arm's-length sale at
such time between an informed and willing buyer, and an informed
and willing seller, under no compulsion to buy or sell,
respectively.
"Funded Debt" shall mean, with respect to any Person,
all Debt of such Person which by its terms or by the terms of any
instrument or agreement relating thereto matures, or which is
otherwise payable or unpaid, more than one year from, or is
directly or indirectly renewable or extendible at the option of
the debtor to a date more than one year (including an option of
the debtor under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period
of more than one year) from, the date of the creation thereof,
provided that Funded Debt shall include, as at any time of
determination, Current Maturities of Funded Debt.
"Guaranty" or "Guarantee" shall mean, with respect to
any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit
or collection) of such Person guaranteeing or in effect
guaranteeing any indebtedness, dividend or other obligation of
any other Person in any manner, whether directly or indirectly,
including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(i) to purchase such indebtedness or
obligation or any property constituting security
therefor;
(ii) to advance or supply funds for the
purchase or payment of such indebtedness or
obligation, or to maintain any working capital or
other balance sheet condition or any income
statement condition of any Person or otherwise to
advance or make available funds for the purchase
or payment of such indebtedness or obligation;
(iii) to lease properties or to purchase
properties or services primarily for the purpose
of assuring the owner of such indebtedness or
obligation of the ability of any other Person to
make payment of the indebtedness or obligation; or
(iv) otherwise to assure the owner of such
indebtedness or obligation against loss in respect
thereof.
In any computation of the indebtedness or other liabilities of
the obligor under any Guaranty, the indebtedness or other
obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
"Hazardous Materials" shall mean (a) hazardous waste as
defined in the Resource Conservation and Recovery Act of 1976, or
in any applicable federal, state or local law or regulation, (b)
hazardous substances, as defined in CERCLA, or in any applicable
state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, (d) toxic substances, as defined
in the Toxic Substances Control Act of 1976, or in any applicable
federal, state or local law or regulation or (e) insecticides,
fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any
applicable federal, state or local law or regulation, as each
such Act, statute or regulation may be amended from time to time.
"Hedge Treasury Note(s)" shall mean, with respect to
any Accepted Note, the United States Treasury Note or Notes whose
duration (as determined by Prudential) most closely matches the
duration of such Accepted Note.
"Hostile Tender Offer" shall mean, with respect to the
use of proceeds of any Note, any offer to purchase, or any
purchase of, shares of capital stock of any corporation or equity
interests in any other entity, or securities convertible into or
representing the beneficial ownership of, or rights to acquire,
any such shares or equity interests, if such shares, equity
interests, securities or rights are of a class which is publicly
traded on any securities exchange or in any over-the-counter
market, other than purchases of such shares, equity interests,
securities or rights representing less than 5% of the equity
interests or beneficial ownership of such corporation or other
entity for portfolio investment purposes, and such offer or
purchase has not been duly approved by the board of directors of
such corporation or the equivalent governing body of such other
entity prior to the date on which the Company makes the Request
for Purchase of such Note.
"including" shall mean, unless the context clearly
requires otherwise, "including without limitation".
"Intangibles" shall mean goodwill, patents, trademarks,
trade names, organization expense, licenses, franchises,
exploration permits and import and export permits and other like
intangibles, determined in accordance with generally accepted
accounting principles.
"Issuance Period" shall have the meaning specified in
paragraph 2B(2).
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien (statutory or otherwise) or charge of
any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of
any jurisdiction) or any other type of preferential arrangement
for the purpose, or having the effect, of protecting a creditor
against loss or securing the payment or performance of an
obligation.
"Multiemployer Plan" shall mean any Plan which is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"Notes" shall have the meaning specified in paragraph
1A.
"Officer's Certificate" shall mean a certificate signed
in the name of the Company by an Authorized Officer of the
Company.
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Plan" shall mean any "employee pension benefit plan"
(as such term is defined in section 3 of ERISA) which is or has
been established or maintained, or to which contributions are or
have been made, by the Company or any ERISA Affiliate.
"Properties" shall mean all real property owned, leased
or otherwise used or occupied by the Company or any Subsidiary,
wherever located.
"Prudential" shall mean The Prudential Insurance
Company of America.
"Prudential Affiliate" shall mean any corporation or
other entity all of the Voting Stock (or equivalent voting
securities or interests) of which is owned by Prudential either
directly or through Prudential Affiliates.
"Purchasers" shall mean Prudential with respect to the
Series B Notes and, with respect to any Accepted Notes,
Prudential and/or the Prudential Affiliate(s) which are
purchasing such Accepted Notes.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"Rentals" shall mean for any period of determination
all fixed rents or charges (including as such all payments during
any such period of determination which the lessee is obligated to
make on termination of the lease or surrender of the property)
payable by the Company or a Subsidiary (as lessee, sublessee,
license, franchisee or the like) for such period under a lease,
license, or other agreement for the use or possession of real or
personal property, tangible or intangible, as determined in
accordance with generally accepted accounting principles.
"Request for Purchase" shall have the meaning specified
in paragraph 2B(3).
"Required Holder(s)" shall mean the holder or holders
of at least 66-2/3% of the aggregate principal amount of the Notes
or of a Series of Notes, as the context may require, from time to
time outstanding.
"Rescheduled Closing Day" shall have the meaning
specified in paragraph 2B(7).
"Responsible Officer" shall mean the chief executive
officer, chief operating officer, chief financial officer or
chief accounting officer of the Company, general counsel of the
Company or any other officer of the Company involved principally
in its financial administration or its controllership function.
"Restricted Subsidiary" shall mean any Subsidiary that
is not an Unrestricted Subsidiary.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Series" shall have the meaning specified in paragraph
1A.
"Series B Closing Day" shall have the meaning specified
in paragraph 2A.
"Series B Note(s)" shall have the meaning specified in
paragraph 1.
"Significant Holder" shall mean (i) each Purchaser, so
long as such Purchaser shall hold (or be committed under this
Agreement to purchase) any Note, or (ii) any other holder of at
least 5% of the aggregate principal amount of the Notes of any
Series from time to time outstanding.
"Subsidiary" shall mean, as to any Person, any Person,
in which such Person, or one or more of its Subsidiaries, or such
Person and one or more of its Subsidiaries, owns sufficient
equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority
of the directors (or Persons performing similar functions) of
such entity, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by such
Person or one or more of its Subsidiaries or such Person and one
or more of its Subsidiaries (unless such partnership can and does
ordinarily take major business actions without the prior approval
of such Person or one or more of its Subsidiaries).
"Substantial Part" shall mean, with respect to any
transfer, assets which (i) together with all other assets
disposed of in the same fiscal year constitute 10% or more of
Consolidated assets determined as of the end of the most recently
ended fiscal quarter or (ii) together with all other assets
disposed of since the Series B Closing Day constitute more than
25% of Consolidated assets determined as of the most recently
ended fiscal quarter; provided, however, that a transaction
involving the sale of the stock or substantially all the assets
of Harris-Teeter, Inc. and/or American & Efird, Inc., each
Subsidiaries of the Company, shall not be included in the
calculation of "Substantial Part" if (x) in the opinion Required
Holders, after giving effect to any such transaction, the
acquiror and the Company have the same credit quality as the
Company immediately prior to such transaction, (y) the acquiror
expressly assumes in writing, pursuant to such documents as the
holders of the Notes may reasonably request, a proportionate
principal amount of the outstanding notes (based on the relative
credit quality, size, and other factors as the Required Holders
shall consider relevant) and (z) immediately before and after
giving effect to such transaction, no Default or Event of Default
would exist.
"Third Party" shall mean all lessees, sublessees,
licensees and other users of the Properties, excluding those
users of the Properties in the ordinary course of the Company's
business (consistent with its practices on the Series B Closing
Day) and on a temporary basis.
"Transferee" shall mean any direct or indirect
transferee of all or any part of any Note purchased by any
Purchaser under this Agreement.
"Unrestricted Subsidiary" shall mean any Subsidiary
which is incorporated outside the United States or substantially
all of the business of which is carried on outside the United
States.
"Voting Stock" shall mean, with respect to any
corporation, any shares of stock of such corporation whose
holders are entitled under ordinary circumstances to vote for the
election of directors of such corporation (irrespective of
whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any
contingency).
10C. Accounting Principles, Terms and Determinations. All
references in this Agreement to "generally accepted accounting
principles" shall be deemed to refer to generally accepted
accounting principles in effect in the United States at the time
of application thereof. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall
be made, and all unaudited financial statements and certificates
and reports as to financial matters required to be furnished
hereunder shall be prepared, in accordance with generally
accepted accounting principles applied on a basis consistent with
the most recent audited financial statements delivered pursuant
to clause (ii) of paragraph 5A or, if no such statements have
been so delivered, the most recent audited financial statements
referred to in clause (i) of paragraph 8B.
11. MISCELLANEOUS.
11A. Payments. The Company agrees that, so long as any
Purchaser shall hold any Note, it will make payments of principal
of, interest on and any Yield-Maintenance Amount payable with
respect to, such Note, which comply with the terms of this
Agreement, by wire transfer of immediately available funds for
credit (not later than 12:00 noon, New York City local time, on
the date due) to (i) such Purchaser's account or accounts as
specified in the Purchaser Schedule attached hereto in the case
of any Series B Note, (ii) the account or accounts of such
Purchaser specified in the Confirmation of Acceptance with
respect to such Note in the case of any Shelf Note, or (iii) such
other account or accounts in the United States as such Purchaser
may designate in writing, notwithstanding any contrary provision
herein or in any Note with respect to the place of payment. Each
Purchaser agrees that, before disposing of any Note, such
Purchaser will make a notation thereon (or on a schedule attached
thereto) of all principal payments previously made thereon and of
the date to which interest thereon has been paid. The Company
agrees to afford the benefits of this paragraph 11A to any
Transferee which shall have made the same agreement as each
Purchaser has made in this paragraph 11A.
11B. Expenses. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated, to pay,
and save each Purchaser and any Transferee harmless against
liability for the payment of, all out-of-pocket expenses arising
in connection with such transactions, including:
(i) all taxes (together in each case with
interest and penalties, if any), other than state or
federal income taxes or franchise taxes, including
without limitation, all stamp, intangibles, recording
and other taxes, which may be payable with respect to
the execution and delivery of this Agreement or the
execution, delivery or acquisition of any Note,
(ii) all document production and duplication
charges and the reasonable fees and expenses of any
special counsel engaged by such Purchaser or such
Transferee in connection with this Agreement, the
transactions contemplated hereby and any subsequent
proposed modification of, or proposed consent under,
this Agreement, whether or not such proposed
modification shall be effected or proposed consent
granted, and
(iii) the reasonable costs and expenses,
including reasonable attorneys' fees, actually incurred
by such Purchaser or such Transferee in connection with
the restructuring, refinancing or "workout" of this
Agreement or the Notes or the transactions contemplated
hereby or thereby or in enforcing (or determining
whether or how to enforce) any rights under this
Agreement or the Notes or in responding to any subpoena
or other legal process or informal investigative demand
issued in connection with this Agreement or the Notes
or the transactions contemplated hereby or by reason of
such Purchaser's or such Transferee's having acquired
any Note, including without limitation costs and
expenses incurred in any bankruptcy case.
The obligations of the Company under this paragraph 11B shall
survive the transfer of any Note or portion thereof or interest
therein by any Purchaser or any Transferee and the payment of any
Note.
11C. Consent to Amendments. This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, if the
Company shall obtain the written consent to such amendment,
action or omission to act, of the Required Holder(s) of the Notes
of each Series except that, (i) with the written consent of the
holders of all Notes of a particular Series, and if an Event of
Default shall have occurred and be continuing, of the holders of
all Notes of all Series, at the time outstanding (and not without
such written consents), the Notes of such Series may be amended
or the provisions thereof waived to change the maturity thereof,
to change or affect the principal thereof, or to change or affect
the rate or time of payment of interest on or any
Yield-Maintenance Amount payable with respect to the Notes of
such Series, (ii) without the written consent of the holder or
holders of all Notes at the time outstanding, no amendment to or
waiver of the provisions of this Agreement shall change or affect
the provisions of this paragraph 11C insofar as such provisions
relate to proportions of the principal amount of the Notes of any
Series, or the rights of any individual holder of Notes, required
with respect to any declaration of Notes to be due and payable or
with respect to any consent, amendment, waiver or declaration,
(iii) with the written consent of Prudential (and not without the
written consent of Prudential) the provisions of paragraph 2B may
be amended or waived (except insofar as any such amendment or
waiver would affect any rights or obligations with respect to the
purchase and sale of Notes which shall have become Accepted Notes
prior to such amendment or waiver), and (iv) with the written
consent of all of the Purchasers which shall have become
obligated to purchase Accepted Notes of any Series (and not
without the written consent of all such Purchasers), any of the
provisions of paragraphs 2B and 3 may be amended or waived
insofar as such amendment or waiver would affect only rights or
obligations with respect to the purchase and sale of the Accepted
Notes of such Series or the terms and provisions of such Accepted
Notes. Each holder of any Note at the time or thereafter
outstanding shall be bound by any consent authorized by this
paragraph 11C, whether or not such Note shall have been marked to
indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. No course of dealing
between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate
as a waiver of any rights of any holder of such Note. As used
herein and in the Notes, the term "this Agreement" and references
thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
11D. Form, Registration, Transfer and Exchange of Notes;
Lost Notes. The Notes are issuable as registered notes without
coupons in denominations of at least $1,000,000, except as may be
necessary to reflect any principal amount not evenly divisible by
$1,000,000. The Company shall keep at its principal office a
register in which the Company shall provide for the registration
of Notes and of transfers of Notes. Upon surrender for
registration of transfer of any Note at the principal office of
the Company, the Company shall, at its expense, execute and
deliver one or more new Notes of like tenor and of a like
aggregate principal amount, registered in the name of such
transferee or transferees. At the option of the holder of any
Note, such Note may be exchanged for other Notes of like tenor
and of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Note to be exchanged at
the principal office of the Company. Whenever any Notes are so
surrendered for exchange, the Company shall, at its expense,
execute and deliver the Notes which the holder making the
exchange is entitled to receive. Each installment of principal
payable on each installment date upon each new Note issued upon
any such transfer or exchange shall be in the same proportion to
the unpaid principal amount of such new Note as the installment
of principal payable on such date on the Note surrendered for
registration of transfer or exchange bore to the unpaid principal
amount of such Note. No reference need be made in any such new
Note to any installment or installments of principal previously
due and paid upon the Note surrendered for registration of
transfer or exchange. Every Note surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by
a written instrument of transfer duly executed, by the holder of
such Note or such holder's attorney duly authorized in writing.
Any Note or Notes issued in exchange for any Note or upon
transfer thereof shall carry the rights to unpaid interest and
interest to accrue which were carried by the Note so exchanged or
transferred, so that neither gain nor loss of interest shall
result from any such transfer or exchange. Upon receipt of
written notice from the holder of any Note of the loss, theft,
destruction or mutilation of such Note and, in the case of any
such loss, theft or destruction, upon receipt of such holder's
unsecured indemnity agreement, or in the case of any such
mutilation upon surrender and cancellation of such Note, the
Company will make and deliver a new Note, of like tenor, in lieu
of the lost, stolen, destroyed or mutilated Note.
11E. Persons Deemed Owners; Participations. Prior to due
presentment for registration of transfer, the Company may treat
the Person in whose name any Note is registered as the owner and
holder of such Note for the purpose of receiving payment of
principal of, interest on and any Yield-Maintenance Amount
payable with respect to, such Note and for all other purposes
whatsoever, whether or not such Note shall be overdue, and the
Company shall not be affected by notice to the contrary. Subject
to the preceding sentence, the holder of any Note may from time
to time grant participations in all or any part of such Note to
any Person on such terms and conditions as may be determined by
such holder in its sole and absolute discretion.
11F. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein
or made in writing by or on behalf of the Company in connection
herewith shall survive the execution and delivery of this
Agreement and the Notes, the transfer by any Purchaser of any
Note or portion thereof or interest therein and the payment of
any Note, and may be relied upon by any Transferee, regardless of
any investigation made at any time by or on behalf of any
Purchaser or any Transferee. Subject to the preceding sentence,
this Agreement and the Notes embody the entire agreement and
understanding between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and
understandings relating to the subject matter hereof. This
Agreement does not supercede, amend or in any way affect the Note
Purchase and Private Shelf Agreement dated as of March 1, 1996.
11G. Successors and Assigns. All covenants and other
agreements in this Agreement contained by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto
(including, without limitation, any Transferee) whether so
expressed or not.
11H. Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action
or condition is prohibited by any one of such covenants, the fact
that it would be permitted by an exception to, or otherwise be in
compliance within the limitations of, another covenant shall not
avoid the occurrence of a Default or Event of Default if such
action is taken or such condition exists.
11I. Notices. All written communications provided for
hereunder (other than communications provided for under paragraph
2) shall be sent by first class mail or nationwide overnight
delivery service (with charges prepaid) and (i) if to any
Purchaser, addressed as specified for such communications in the
Purchaser Schedule attached hereto (in the case of the Series B
Notes) or the Purchaser Schedule attached to the applicable
Confirmation of Acceptance (in the case of the Shelf Notes), or
at such other address as such Purchaser shall have specified to
the Company in writing, (ii) if to any other holder of any Note,
addressed to it at such address as it shall have specified to the
Company in writing or, if any such other holder shall not have so
specified an address, then addressed to such other holder in care
of the last holder of such Note which shall have so specified an
address to the Company, and (iii) if to the Company, addressed to
it at Two First Union Center, Suite 2000, Charlotte, North
Carolina 28282, Attention: Chief Financial Officer, telephone
(704) 372-5404, telecopy (704) 372-6409; provided, however, that
any such communication to the Company may also, at the option of
the Person sending such communication, be delivered by any other
means either to the Company at its address specified above or to
any Authorized Officer of the Company. Any communication
pursuant to paragraph 2 shall be made by the method specified for
such communication in paragraph 2, and shall be effective to
create any rights or obligations under this Agreement only if, in
the case of a telephone communication, an Authorized Officer of
the party conveying the information and of the party receiving
the information are parties to the telephone call, and in the
case of a telecopier communication, the communication is signed
by an Authorized Officer of the party conveying the information,
addressed to the attention of an Authorized Officer of the party
receiving the information, and in fact received at the telecopier
terminal the number of which is listed for the party receiving
the communication in the Information Schedule or at such other
telecopier terminal as the party receiving the information shall
have specified in writing to the party sending such information.
11J. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any
payment of principal of or interest on, or Yield-Maintenance
Amount payable with respect to, any Note that is due on a date
other than a Business Day shall be made on the next succeeding
Business Day, without including the additional days elapsed in
the computation of the interest payable on such next succeeding
Business Day.
11K. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
11L. Descriptive Headings. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
11M. Satisfaction Requirement. If any agreement,
certificate or other writing, or any action taken or to be taken,
is by the terms of this Agreement required to be satisfactory to
any Purchaser, to any holder of the Notes or to the Required
Holder(s), the determination of such satisfaction shall be made
by such Purchaser, such holder or the Required Holder(s), as the
case may be, in the sole and exclusive judgment (exercised in
good faith) of the Person or Persons making such determination.
11N. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the Parties shall
be governed by, the Internal Law of the State of New York. THE
COMPANY HEREBY SUBMITS TO THE JURISDICTION OF THE SUPREME COURT
OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY, NEW YORK AND
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO THE SOLE AND
ABSOLUTE ELECTION OF THE REQUIRED HOLDER(S) AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL ACTIONS OR PROCEEDINGS RELATING
TO THIS AGREEMENT OR THE NOTES SHALL BE LITIGATED IN SUCH COURTS,
AND THE COMPANY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON
IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY
PROCEEDING IN ANY SUCH COURTS.
11O. Severalty of Obligations. The sales of Notes to the
Purchasers are to be several sales, and the obligations of
Prudential and the Purchasers under this Agreement are several
obligations. No failure by Prudential or any Purchaser to
perform its obligations under this Agreement shall relieve any
other Purchaser or the Company of any of its obligations
hereunder, and neither Prudential nor any Purchaser shall be
responsible for the obligations of, or any action taken or
omitted by, any other such Person hereunder.
11P. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
11Q. Binding Agreement. When this Agreement is executed and
delivered by the Company and Prudential, it shall become a
binding agreement between the Company and Prudential. This
Agreement shall also inure to the benefit of each Purchaser which
shall have executed and delivered a Confirmation of Acceptance,
and each such Purchaser shall be bound by this Agreement except
to the extent modified by such Confirmation of Acceptance.
Very truly yours,
RUDDICK CORPORATION
By /s/ Douglas A. Stephenson
Title: Treasurer
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By /s/ Charles Y. King
Vice President
<PAGE>
PURCHASER SCHEDULE
RUDDICK CORPORATION
Aggregate
Principal
Amount of
Notes to be Note Denom-
Purchased ination(s)
----------- -----------
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA $50,000,000 $45,000,000
$ 5,000,000
(1) All payments on account of
Notes held by such purchaser
shall be made by wire transfer
of immediately available funds
for credit to:
Account No. 890-0304-391, Prudential Managed Account
(in the case of payments on account of the Note originally
issued in the principal amount of $45,000,000)
Account No. 890-0304-944, PRIVEST Portfolio Account
(in the case of payments on account of the Note originally
issued in the principal amount of $5,000,000
Bank Of New York
New York, New York
(ABA No.: 021-000-018)
Each such wire transfer shall set forth the name
of the Company, a reference to "7.72% Senior Notes
due April 15, 2017, Security No. INV5593", in the
case of the Notes originally issued in the principal
amount of $45,000,000 and Security No. INV5594,
in the case of the Notes originally issued in the principal
amount of $5,000,000, and the due date and application
(as among principal, interest and Yield-Maintenance
Amount) of the payment being made.
(2) Address for all notices relating to payments:
The Prudential Insurance Company of America
Three Gateway Center
100 Mulberry Street
Newark, New Jersey 07102-4077
Attention: Manager, Billings and Collections
Telephone: (201) 802-5260
Fax: (201) 802-8055
(3) Address for all other communications and notices:
The Prudential Insurance Company of America
c/o Prudential Capital Group
One Gateway Center, 11th Floor
7-45 Raymond Boulevard West
Newark, New Jersey 07102-5311
Attention: Managing Director
Telephone: (201) 802-9182
Fax: (201) 802-3200
with a copy to:
The Prudential Insurance Company of America
c/o Prudential Capital Group
One Ravinia Drive, Suite 1400
Atlanta, Georgia 30346
Attention: Senior Vice President
Telephone: (770) 395-8424
Fax: (770) 395-8421
(4) Recipient of telephonic prepayment notices:
Manager, Trade Management
Telephone: (201) 802-7398
Fax: (201) 802-9425
(5) Tax Identification No.: 22-1211670
<PAGE>
EXHIBIT A-1
[FORM OF SERIES B NOTE]
RUDDICK CORPORATION
7.72% SENIOR SERIES B NOTE DUE 2017
No. _____ [Date]
$________
FOR VALUE RECEIVED, the undersigned, RUDDICK CORPORATION
(herein called the "Company"), a corporation organized and
existing under the laws of the State of North Carolina, hereby
promises to pay to ____________________________
___________________________, or registered assigns, the principal
sum of _________________________ DOLLARS on April __, 2017, with
interest (computed on the basis of a 360-day year--30-day month)
(a) on the unpaid balance thereof at the rate of 7.72% per annum
from the date hereof, payable quarterly on the ___ day of April,
July, October and January in each year, commencing with the July
next succeeding the date hereof, until the principal hereof shall
have become due and payable, and (b) on any overdue payment
(including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any
Yield-Maintenance Amount (as defined in the Note Agreement
referred to below), payable quarterly as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) 9.72% or (ii)
2.0% over the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York from time to time in New York
City as its Prime Rate.
Payments of principal of, interest on and any
Yield-Maintenance Amount payable with respect to this Note are to
be made at the main office of The Bank of New York in New York
City or at such other place as the holder hereof shall designate
to the Company in writing, in lawful money of the United States
of America.
This Note is one of a series of Senior Notes (herein called
the "Notes") issued pursuant to a Note Purchase and Private Shelf
Agreement, dated as of April __, 1997 (herein called the
"Agreement"), among the Company and the original purchasers of
the Notes named in the Purchaser Schedule attached thereto and is
entitled to the benefits thereof.
This Note is a registered Note and, as provided in the
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or
such holder's attorney duly authorized in writing, a new Note for
the then outstanding principal amount will be issued to, and
registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Company shall not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or
from time to time in part, on the terms specified in the
Agreement.
The Company and any and all endorsers, guarantors and
sureties severally waive grace, demand, presentment for payment,
notice of dishonor or default, notice of intent to accelerate,
notice of acceleration (to the extent set forth in the
Agreement), protest and diligence in collecting.
Should any debt represented by this Note be collected at law
or in equity, or in bankruptcy or other proceedings, or should
this Note be placed in the hands of attorneys for collection, the
Company agrees to pay, in addition to the principal,
Yield-Maintenance Amount, if any, and interest due and payable
hereon, all costs of collecting or attempting to collect this
Note, including reasonable attorneys' fees and expenses
(including those incurred in connection with any appeal).
In case an Event of Default shall occur and be continuing,
the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the
Agreement.
Capitalized terms used and not otherwise defined herein
shall have the meanings (if any) provided in the Agreement.
This Note is intended to be performed in the State of New
York and shall be construed and enforced in accordance with the
internal law of such State. As provided in paragraph 11N of the
Agreement, the Company submits to the jurisdiction of the Supreme
Court of the State of New York located in New York County, New
York and the United States District Court for the Southern
District of New York in any action or proceeding relating to this
Note.
RUDDICK CORPORATION
By_________________________
Title:
EXHIBIT A-2
[FORM OF SHELF NOTE]
RUDDICK CORPORATION
SENIOR SERIES __ NOTE
No. _____
ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE:
INTEREST PAYMENT DATES:
FINAL MATURITY DATE:
PRINCIPAL PREPAYMENT DATE AND AMOUNTS:
FOR VALUE RECEIVED, the undersigned, RUDDICK CORPORATION
(herein called the "Company"), a corporation organized and
existing under the laws of the State of ____________, hereby
promises to pay to ____________________________, or registered
assigns, the principal sum of _________________________ DOLLARS
[on the Final Maturity Date specified above] [, payable on the
Principal Prepayment Dates and in the amounts specified above,
and on the Final Maturity Date specified above in an amount equal
to the unpaid balance of the principal hereof,] with interest
(computed on the basis of a 360-day year--30-day month) (a) on
the unpaid balance thereof at the Interest Rate per annum
specified above, payable on each Interest Payment Date specified
above and on the Final Maturity Date specified above, commencing
with the Interest Payment Date next succeeding the date hereof,
until the principal hereof shall have become due and payable, and
(b) on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of Yield Maintenance Amount and
any overdue payment of interest, payable on each Interest Payment
Date as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal
to the greater of (i) 2% over the Interest Rate specified above
or (ii) 2% over the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York from time to time in New York
City as its Prime Rate.
Payments of principal, Yield-Maintenance Amount payable, if
any, and interest are to be made at the main office of The Bank
of New York in New York City or at such other place as the holder
hereof shall designate to the Company in writing, in lawful money
of the United States of America.
This Note is one of a series of Senior Notes (herein called
the "Notes") issued pursuant to a Note Purchase and Private Shelf
Agreement, dated as of _________, 1997 (herein called the
"Agreement"), between the Company, on the one hand, and The
Prudential Insurance Company of America and each Prudential
Affiliate (as defined in the Agreement) which becomes party
thereto, on the other hand, and is entitled to the benefits
thereof.
[This Note is subject to optional prepayment, in whole or
from time to time in part, on the terms specified in the
Agreement.]
This Note is a registered Note and, as provided in the
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or
such holder's attorney duly authorized in writing, a new Note for
the then outstanding principal amount will be issued to, and
registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Company shall not be affected by any notice to
the contrary.
In case an Event of Default shall occur and be continuing,
the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the
Agreement.
The Company and any and all endorsers, guarantors and
sureties severally waive grace, demand, presentment for payment,
notice of dishonor or default, notice of intent to accelerate,
notice of acceleration (to the extent set forth in the
Agreement), protest and diligence in collecting.
Should any debt represented by this Note be collected at law
or in equity, or in bankruptcy or other proceedings, or should
this Note be placed in the hands of attorneys for collection, the
Company agrees to pay, in addition to the principal,
Yield-Maintenance Amount, if any, and interest due and payable
hereon, all costs of collecting or attempting to collect this
Note, including reasonable attorneys' fees and expenses
(including those incurred in connection with any appeal).
Capitalized terms used and not otherwise defined herein
shall have the meanings (if any) provided in the Agreement.
This Note is intended to be performed in the State of New
York and shall be construed and enforced in accordance with the
internal law of such State. As provided in paragraph 11N of the
Agreement, the Company submits to the jurisdiction of the Supreme
Court of the State of New York located in New York County, New
York and the United States District Court for the Southern
District of New York in any action or proceeding relating to this
Note.
RUDDICK CORPORATION
By_________________________
Title:
EXHIBIT B
[FORM OF REQUEST FOR PURCHASE]
RUDDICK CORPORATION
Reference is made to the Note Purchase and Private Shelf
Agreement (the "Agreement"), dated as of ____________, 1997
between Ruddick Corporation (the "Company"), on the one hand, and
The Prudential Insurance Company of America ("Prudential") and
each Prudential Affiliate which becomes party thereto, on the
other hand. Capitalized terms used and not otherwise defined
herein shall have the respective meanings specified in the
Agreement.
Pursuant to Paragraph 2B(3) of the Agreement, the Company
hereby makes the following Request for Purchase:
1. Aggregate principal amount of
the Notes covered hereby
(the "Notes") $____________
2. Individual specifications of the Notes:
Principal
Final Prepayment Interest
Principal Maturity Dates and Payment
Amount(1) Date Amounts Period(2)
--------- -------- ---------- -----------
3. Use of proceeds of the Notes(3):
4. Proposed day for the closing of the purchase and sale
of the Notes:
______________________
(1) Minimum principal amount of $10,000,000.
(2) Specify quarterly or semi-annually.
(3) Cannot be used to finance a Hostile Tender Offer.
5. The purchase price of the Notes is to be transferred
to:
Name, Address
and ABA Routing Number of
Number of Bank Account
--------------- ----------
6. The Company certifies (a) that the representations and
warranties contained in paragraph 8 of the Agreement
are true on and as of the date of this Request for
Purchase except to the extent of changes caused by the
transactions contemplated in the Agreement and (b) that
there exists on the date of this Request for Purchase
no Event of Default or Default.
7. The Issuance Fee to be paid pursuant to the Agreement
will be paid by the Company on the closing date.
[8. In connection with any rate quotes it may provide,
Prudential should assume a Designated Spread of
______%.]
Dated: RUDDICK CORPORATION
By: ______________________________
Authorized Officer
EXHIBIT C
[FORM OF CONFIRMATION OF ACCEPTANCE]
RUDDICK CORPORATION
Reference is made to the Note Purchase and Private Shelf
Agreement (the "Agreement"), dated as of ____________, 1997
between RUDDICK CORPORATION (the "Company"), on the one hand, and
The Prudential Insurance Company of America ("Prudential") and
each Prudential Affiliate which becomes party thereto, on the
other hand. All terms used herein that are defined in the
Agreement have the respective meanings specified in the
Agreement.
Prudential or the Prudential Affiliate which is named below
as a Purchaser of Notes hereby confirms the representations as to
such Notes set forth in paragraph 9 of the Agreement, and agrees
to be bound by the provisions of paragraphs 2B(5) and 2B(7) of
the Agreement relating to the purchase and sale of such Notes and
by all other provisions of the Agreement except as explicitly
modified hereby.
Pursuant to paragraph 2B(5) of the Agreement, an Acceptance
with respect to the following Accepted Notes is hereby confirmed:
I. Accepted Notes: Aggregate principal
amount $_________________
(A) (a) Name of Purchaser:
(b) Principal amount:
(c) Final maturity date:
(d) Principal prepayment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(g) Payment and notice instructions: As set
forth on attached Purchaser Schedule
[(h) Designated Spread: ____%]
(B) (a) Name of Purchaser:
(b) Principal amount:
(c) Final maturity date:
(d) Principal prepayment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(g) Payment and notice instructions: As set
forth on attached Purchaser Schedule
[(h) Designated Spread: ____%]
[(C), (D)......same information as above.]
II. Closing Day:
Dated: RUDDICK CORPORATION
By: ____________________________
Title: _________________________
[THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA]
By: ____________________________
Vice President
[PRUDENTIAL AFFILIATE]
By: ____________________________
Vice President
EXHIBIT D
[FORM OF OPINION OF COMPANY'S COUNSEL]
[Letterhead of _________________]
[Date of Closing]
The Prudential Insurance Company of America
c/o Prudential Capital Corporation
One Gateway Center, 11th Floor
7-45 Raymond Boulevard West
Newark, New Jersey 07102-5311
Ladies and Gentlemen:
We have acted as counsel for Ruddick Corporation (the
"Company") in connection] [As ________________________ of Ruddick
Corporation (the "Company"), I am familiar] with the Note
Purchase and Private Shelf Agreement, dated as of April __, 1997,
among the Company and you (the "Note Agreement"), between the
Company, on the one hand, and The Prudential Insurance Company of
America and each Prudential Affiliate which becomes party
thereto, on the other hand, pursuant to which the Company has
issued to you today 7.72% Senior Series __ Notes of the Company
in the aggregate principal amount of $___________ (the "Notes").
All terms used herein that are defined in the Note Agreement have
the respective meanings specified in the Note Agreement. This
letter is being delivered to you in satisfaction of the condition
set forth in paragraph 3A(v) of the Note Agreement and with the
understanding that you are purchasing the Notes in reliance on
the opinions expressed herein.
In this connection, [we] [I] have examined such certificates
of public officials, certificates of officers of the Company and
copies certified to [our] [my] satisfaction of corporate
documents and records of the Company and of other papers, and
have made such other investigations, as [we] [I] have deemed
relevant and necessary as a basis for [our] [my] opinion
hereinafter set forth. [We] [I] have relied upon such
certificates of public officials and of officers of the Company
with respect to the accuracy of material factual matters
contained therein which were not independently established. With
respect to the opinion expressed in paragraph 3 below, [we] [I]
have also relied upon the representation made by each of you in
paragraph 9A of the Note Agreement.
Based on the foregoing, it is [our] [my] opinion that:
1. The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
North Carolina.
2. The Note Agreement and the Notes have been duly
authorized by all requisite corporate action and duly executed
and delivered by authorized officers of the Company, and are
valid obligations of the Company, legally binding upon and
enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and (b)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
3. It is not necessary in connection with the
offering, issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreement to register the
Notes under the Securities Act or to qualify an indenture in
respect of the Notes under the Trust Indenture Act of 1939, as
amended.
4. The extension, arranging and obtaining of the
credit represented by the Notes do not result in any violation of
Regulation G, T or X of the Board of Governors of the Federal
Reserve System.
5. The execution and delivery of the Note Agreement
and the Notes, the offering, issuance and sale of the Notes and
fulfillment of and compliance with the respective provisions of
the Note Agreement and the Notes do not conflict with, or result
in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in any violation of, or
result in the creation of any Lien upon any of the properties or
assets of the Company [or any of its Subsidiaries] pursuant to,
or require any authorization, consent, approval, exemption or
other action by or notice to or filing with any court,
administrative or governmental body or other Person (other than
routine filings after the date hereof with the Securities and
Exchange Commission and/or state Blue Sky authorities) pursuant
to, the charter or by-laws of the Company [or any of its
Subsidiaries], any applicable law (including any securities or
Blue Sky law), statute, rule or regulation or (insofar as is
known to [us] [me] after having made due inquiry with respect
thereto) any agreement (including, without limitation, any
agreement listed in Schedule 8G to the Note Agreement),
instrument, order, judgment or decree to which the Company [or
any of its Subsidiaries] is a party or otherwise subject.
Very truly yours,
RUDDICK CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
Pursuant to the
RUDDICK CORPORATION
1995 COMPREHENSIVE STOCK OPTION PLAN
THIS AGREEMENT, made and entered into as of the 6th
day of February, 1997, by and between Ruddick Corporation, a North
Carolina corporation (the "Corporation") and JOHN R. BELK
of Director "Optionee").
WHEREAS, the Corporation has adopted the Ruddick Corporation
1995 Comprehensive Stock Option Plan (the "Plan"); and
WHEREAS, Optionee was a Director of the Corporation or one
of its subsidiaries on the Effective Date of the Plan; and
WHEREAS, pursuant to Section 9 of the Plan, all Directors on
the Effective Date are granted Nonstatutory Stock Options under
the Plan;
NOW, THEREFORE, the Corporation and Optionee agree as
follows:
1. Subject to the terms and conditions set forth herein
and in the Plan, the Corporation grants to Optionee, during the
ten-year period commencing on the Effective Date of the Plan and
ending on the date which is ten years thereafter (hereinafter
called the "Option Period"), the Option to purchase from the
Corporation at a price of $14.375 per share, up to but not
exceeding in the aggregate Ten Thousand (10,000) shares of the
Corporation's Common Stock (the "Option"), which Option may be
exercised in whole or in part, from time to time during the
Option Period, subject to the terms and provisions of the Plan
and this Agreement.
2. The Option granted to the Optionee hereunder may not be
exercised:
(a) Before the Plan is approved by the shareholders of
the Corporation;
(b) If and to the extent required by Rule 16b-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), within the first six (6) months after the date the
Plan is approved by the shareholders of the Corporation;
provided that this six (6) month restriction shall not apply
if the Director dies during such period; or
(c) After the expiration of the Option Period;
provided, however, that the Option shall be subject to
termination before the expiration of the Option Period as
provided in Sections 3(b), 3(c) or 3(d) hereof.
3. The Option hereby granted shall terminate and be of no
force or effect upon the first to occur of the following events:
(a) The expiration of the Option Period;
(b) Except as set forth in Section 3(c) or 3(d)
hereof, the expiration of three months after the Optionee
ceases to be a Director; provided, however, that if the
Optionee ceases to be a Director before the lapse of the six
month period described in Section 2(b) hereof, the
expiration of three months after the lapse of such six month
period;
(c) If the Optionee ceases to be a Director by reason
of the Optionee's death or Disability, the expiration of one
(1) year after such date of death or Disability (during
which such one (1) year period the Option may be exercised
(to the extent otherwise exercisable) by the Optionee (in
the case of Disability) or the person to whom the Optionee's
rights hereunder shall have passed by will or by the laws of
descent and distribution); or
(d) If the Optionee dies after he ceases to be a
Director but within the period that his Option are still
exercisable pursuant to this Agreement, the expiration of
one (1) year after such date of death (during which such one
(1) year period the Option may be exercised (to the extent
otherwise exercisable) by the person to whom the Optionee's
rights hereunder shall have passed by will or by the laws of
descent and distribution).
4. The option hereby granted shall be exercised by an
Optionee by written notice (signed by the Optionee or the
Optionee's successors) delivered to the Corporation at its
offices at 2000 Two First Union Center, Charlotte, North Carolina
28202, from time to time, on any business day, specifying the
whole number of shares the Optionee then desires to purchase and
containing the representation that it is the Optionee's current
intention to acquire the shares being purchased for investment
and not for resale. Payment in full of the option price of such
shares must be made at the time the option is exercised and
payment may be made in cash for an amount in U.S. dollars equal
to the option price of such shares. Payment may also be made in
shares of Common Stock of the Corporation previously held by
Optionee or by combining cash and shares previously held.
Payment in shares may be made with shares received upon the
exercise or partial exercise of the Option hereby granted,
whether or not involving a series of exercises or partial
exercises and whether or not share certificates for such shares
surrendered have been delivered to Optionee. Shares of Common
Stock previously held by the Optionee, and surrendered in
accordance with rules and regulations adopted by the Committee
for the purpose of making full or partial payment of the Option
price, shall be valued for such purpose at the Fair Market Value
thereof on the date the Option is exercised. As soon as
practicable after said notice shall have been received, the
Corporation shall deliver to the Optionee a stock certificate
registered in the Optionee's name representing the Option shares.
5. The Options granted hereunder are Nonstatutory Options
and are not intended to qualify for tax treatment under Code
Section 422.
6. Whenever the word "Optionee" is used in any provision
of this Agreement under circumstances where the provision should
logically be construed to apply to the estate, personal
representative, or beneficiary to whom this Option may be
transferred by will or by the laws of descent and distribution,
it shall be deemed to include such person.
7. Optionee shall not be deemed for any purpose to be a
shareholder of the Corporation with respect to any shares as to
which this Option shall not have been exercised and payment made
as herein provided and a stock certificate for such shares
actually issued to Optionee. No adjustment will be made for
dividends or other rights for which the record date is prior to
the date of such issuance.
8. In addition to and notwithstanding anything to the
contrary contained in the Plan, in the event of (i) the adoption
of a plan of merger or consolidation of the Corporation with any
other corporation or association as a result of which the holders
of the voting capital stock of the Corporation as a group would
receive less than 50% of the voting capital stock of the
surviving or resulting corporation; (ii) the approval by the
Board of Directors of the Corporation of an agreement providing
for the sale or transfer (other than as security for obligations
of the Corporation) of substantially all the assets of the
Corporation, or (iii) in the absence of a prior expression of
approval of the Board of Directors, the acquisition of more than
20% of the Corporation's voting capital stock by any person
within the meaning of Section 13(d)(3) of the Act, other than a
person, or group including a person, who beneficially owned, as
of the Effective Date of the Plan, more than 7% of the
Corporation's securities; then, the Option granted hereunder
shall become immediately exercisable in full, subject to any
appropriate adjustments in the number of shares subject to the
Option and the option price, and shall remain exercisable for the
remaining term of such Option, regardless of whether such Option
has been outstanding for six months or of any provision contained
herein or in the Plan with limiting the exercisability of the
Option or any portion thereof for any length of time, but subject
to all of the terms hereof and of the Plan not inconsistent with
this paragraph.
The existence of this Option shall not affect in any way the
right or power of the Corporation or its subsidiaries to make
adjustments, reclassifications, reorganizations or other changes
in the Corporation's capital structure or its business, or to
issue any bonds, debentures, preferred or prior preference stocks
ahead of or convertible into, or otherwise affecting the Common
Stock or the rights thereof, or to merge or consolidate, or to
dissolve or liquidate, or to sell or transfer all or any part of
its assets or business, or any other corporation act or
proceeding, whether of a similar character or otherwise.
9. Anything in this Agreement to the contrary
notwithstanding, if, at any time specified herein for the issue
of shares to Optionee, any law, or any regulation or requirement
of the Securities and Exchange Commission or any other
governmental authority having jurisdiction in the premises, shall
require either the Corporation or Optionee to take any action in
connection with the shares then to be issued, the issue of such
shares shall be deferred until such action shall have been taken;
the Corporation shall be under no obligation to take such action;
and the Corporation shall have no liability whatsoever as a
result of the non-issuance of such shares, except to refund to
the Optionee any consideration tendered in respect of the
exercise price.
10. Any dispute or disagreement which shall arise under, or
as a result of, or pursuant to, this Agreement shall be
determined by the Committee (as that term is defined in the Plan)
in its absolute and uncontrolled discretion, and the
determinations or interpretations by the Committee shall be
final, binding and conclusive on all persons affected thereby.
The Plan and Agreement may be amended, modified, discontinued or
terminated as provided in Section 14 of the Plan.
11. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be
delivered personally or by mail, postage prepaid, addressed as
follows: to the Secretary of the Corporation, at 2000 Two First
Union Center, Charlotte, North Carolina 28282, or at such other
address as the Corporation, by notice to Optionee, may designate
in writing from time to time; to Optionee, at Optionee's address
as shown herein, or at such other address as Optionee, by notice
to the Corporation, may designate in writing from time to time.
12. Shares of Common Stock issued pursuant to the exercise
of this Option will be issued only in the name of Optionee and
may not be transferred into the name of any agent of or nominee
for Optionee until such time as a disposition of such shares
would satisfy the holding period requirements of Section
422(a)(1) of the Internal Revenue Code of 1986, as amended.
13. This Agreement is subject in all respects to the terms
and conditions contained in the Plan, a copy of which is attached
hereto and incorporated herein by reference. All capitalized
terms used but not defined herein shall have the same meaning as
set forth in Section 1 of the Plan, unless the context clearly
indicates otherwise.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed by its duly authorized officer, and
Optionee has hereunto set Optionee's hand and seal, all on the
day and year first above written.
RUDDICK CORPORATION
Attest By: /S/ R. D. BRIGDEN
Title: Vice President - Finance
/S/ D. B. WILLIFORD
Title: Secretary
(Corporate Seal)
OPTIONEE:
/S/ JOHN R. BELK (SEAL)
Address
Belk Stores Services
2801 W. Tyvola Rd.
Charlotte, NC 28217-4506
Social Security No.
242 74 3108
EXHIBIT 11
RUDDICK CORPORATION
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
NINE MONTHS ENDED
_____________________
June 29, June 30,
1997 1996
__________ ________
NET INCOME PER SHARE COMPUTED AS
FOLLOWS:
PRIMARY:
1. Net Income $ 35,836,000 $31,233,000
=========== ===========
2. Weighted Average Common Shares
Outstanding 46,535,789 46,409,279
3. Incremental Shares Under Stock
Options Computed Under
the Treasury Stock Method Using
the Average Market Price of Issuer's
Stock During the Periods 286,439 199,720
____________ ___________
4. Weighted Average Common Shares
and Common Equivalent Shares
Outstanding 46,822,228 46,608,999
============ ===========
5. Net Income Per Share (Item 1
divided by Item 4) $ .77 $ .67
============ ===========
FULLY DILUTED:
1. Net Income $ 35,836,000 $ 31,233,000
============ ===========
2. Weighted Average Common
Shares Outstanding 46,535,789 46,409,279
3. 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 296,519 227,236
_____________ __________
4. Weighted Average Common Shares
and Common Equivalent Shares
Outstanding 46,832,308 46,636,515
============= ===========
5. Net Income Per Share (Item 1
divided by Item 4) $ .77 $ .67
============= ===========
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
RUDDICK CORPORATION
FINANCIAL DATA SCHEDULE FOR THE THREE MONTHS ENDED 6/29/97
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-29-1996
<PERIOD-END> JUN-29-1997
<CASH> 14,336,000
<SECURITIES> 0
<RECEIVABLES> 77,599,000
<ALLOWANCES> 1,916,000
<INVENTORY> 197,698,000
<CURRENT-ASSETS> 317,799,000
<PP&E> 758,547,000
<DEPRECIATION> 302,836,000
<TOTAL-ASSETS> 865,148,000
<CURRENT-LIABILITIES> 220,950,000
<BONDS> 200,569,000
0
0
<COMMON> 56,450,000
<OTHER-SE> 315,844,000
<TOTAL-LIABILITY-AND-EQUITY> 865,148,000
<SALES> 579,747,000
<TOTAL-REVENUES> 579,747,000
<CGS> 412,522,000
<TOTAL-COSTS> 554,299,000
<OTHER-EXPENSES> 2,159,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,928,000
<INCOME-PRETAX> 19,361,000
<INCOME-TAX> 6,297,000
<INCOME-CONTINUING> 13,064,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 13,064,000
<EPS-PRIMARY> .28
<EPS-DILUTED> .28
</TABLE>
