<PAGE>
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended October 31, 1997
---------------------------
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ____________ to ____________
Commission File Number 1-6797
-----------
TEXFI INDUSTRIES, INC.
(Exact name of registrant as specified in charter)
Delaware 56-0795032
- - -------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5400 Glenwood Avenue, Suite 215, Raleigh, NC 27612
- - -------------------------------------------- -----
(Address of principal executive offices) (ZIP Code)
Registrant's telephone number, including area code (919) 783-4736
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE ON
TITLE OF EACH CLASS WHICH REGISTERED
------------------- ----------------
Common Stock, par value $1.00 per share New York Stock Exchange, Inc.
- - --------------------------------------- -----------------------------
8-3/4% Senior Subordinated Debentures
due August 1, 1999 New York Stock Exchange, Inc.
- - --------------------------------------- -----------------------------
Securities registered pursuant to Section 12(g) of the Act: None
--------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No___
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Aggregate market value of voting stock held by persons other than officers,
directors and related stockholders as of January 19, 1998: $26,813,583
Number of shares of Common Stock outstanding at January 19, 1998: 8,859,098.
Documents incorporated by reference:
Portions of the definitive proxy statement for the Annual Meeting of
Stockholders to be held on March 18, 1998 are Incorporated by Reference into
Part III.
<PAGE>
PART I
Item 1. Business.
Texfi Industries, Inc. ("the Company") was incorporated in Delaware in
1963. The Company manufactures and markets a diverse line of textile products
from a variety of raw materials, including natural and synthetic materials. The
Company's offices are located at 5400 Glenwood Avenue, Suite 215, Raleigh, North
Carolina 27612, telephone (919) 783-4736.
The Company's 1997 operations included two divisions: Texfi Blends and
Texfi Narrow Fabrics. The following discusses each of the Company's operating
divisions and how it contributed to the Company's consolidated 1997 operating
performance.
The Texfi Blends division is the Company's largest division, operating four
manufacturing facilities located in Rocky Mount, Fayetteville, and Haw River,
North Carolina and Jefferson, Georgia, which provide an aggregate of 1,165,000
square feet of manufacturing facilities. The division's sales and marketing
headquarters are in New York City, with branch offices or agents in other major
cities throughout the United States and Europe.
The Texfi Blends division contributed 90.9% of the Company's total net
sales in 1997 by manufacturing products made from textured polyester,
flame-retardant polyester, and blends of polyester, rayon, and wool. These
products are sold worldwide to the menswear, womenswear and childrenswear
apparel, uniform, home furnishings, and export markets.
During 1997, the Texfi Narrow Fabrics division operated 115,000 square
feet of manufacturing facilities in Asheboro, North Carolina. It maintained a
sales office in Asheboro, North Carolina and agents in several United States
cities. Texfi Narrow Fabrics contributed 9.1% of the Company's total net sales
in 1997 by manufacturing products from polyester, nylon and rubber which are
sold domestically to the intimate apparel, insert apparel, medical and
automotive markets. On November 1, 1996, the Company decided to restructure its
narrow fabrics operations. The first step in the restructuring plan was to close
the Narrow Fabrics division's woven narrow fabrics facility in Graham, North
Carolina and consolidate the remaining Narrow Fabrics division assets into its
knitted narrow fabrics Asheboro, North Carolina facility. As a result, the
Company recorded an initial $3.3 million restructuring charge during 1996 which
consisted of a $2.0 million and $500,000 write-down of property, plant and
equipment and inventory, respectively, to their net realizable value and
$800,000 in other various restructuring costs. During 1997, the Company
proceeded to liquidate a majority of the Graham facility assets and decided to
place for sale its remaining knitted narrow fabrics business. On October 3,
1997, the Company sold its knitted narrow fabrics business, excluding trade and
factor accounts receivable, for $7.7 million, which generated a gain of $3.8
million. Also during the fourth quarter of 1997, the Company recorded an
additional $3.3 million in restructuring charges to further write-down the
remaining assets related to the Graham facility including a $3.0 million
write-down of property, plant and equipment to its net realizable value. As of
October 31, 1997, the Company had approximately $1.6 million of assets remaining
for sale related to its woven narrow fabrics operations of which $1.4 million
were sold subsequent to year-end.
During 1996, the Company decided to discontinue the operations at its
Kingstree Knit Apparel division. During the fourth quarter of 1997, the Company
liquidated the remaining inventory related to this division and recorded a loss
from discontinued operations of $1.0 million after reserves. As of October 31,
1997, the Company has approximately $1.7 million of Kingstree Knit Apparel
division assets held for disposal.
2
<PAGE>
The Company reported a 1997 equity in loss of joint venture of $1.6
million representing its share of costs related to the startup of Rival Sport,
LLC ("Rival"). Rival, a joint venture between the Company and NHL Enterprises,
was created in February 1997 to market and source a branded line of
hockey-related apparel. On December 18, 1997, the Company sold its investment in
Rival to Clarendon Holdings, LLC ("Clarendon"), an affiliate of certain
executive officers of the Company. In exchange for the Company's 50% ownership
interest, it received a secured $4.5 million single balloon payment note due
December 15, 2007, which bears interest annually of 5%. The note provides for
mandatory prepayment(s) when Clarendon receives a cash distribution(s) from
Rival pursuant to the terms of the operating agreement between Clarendon and NHL
Enterprises or in the event Clarendon declares bankruptcy or fails to make a
payment when due under the note. The Company's note represents its net
investment in Rival on the date of sale. While the sale does not immediately
provide cash to the Company, it eliminates the Company's obligation to invest
additional cash in this startup joint venture in the future. During 1997, the
Company invested $4.9 million in Rival.
PRODUCT GROUPS
The Company manufactures two basic product groups:
* woven finished fabrics for the apparel, home furnishings and
export markets and
* narrow knitted and woven fabrics for the intimate apparel
and insert apparel markets, as well as automotive accessories
and medical applications. The Company ceased manufacture of
these products in conjunction with the sale of its knitted
narrow fabrics facility in Asheboro, North Carolina.
The approximate percentage of total revenue contributed by each of the
Company's product groups is as follows:
1997 1996 1995
---- ---- ----
Woven finished fabrics 90.9 87.5 83.8
Narrow fabrics 9.1 12.5 16.2
----- ----- -----
100.0 100.0 100.0
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SEASONALITY
During 1997 and 1996, the Company's business exhibited seasonality,
primarily due to temporary plant shutdowns during the Christmas/New Year's
holiday season. As a result, sales have been and are expected to be lower during
the first quarter of the fiscal year while working capital requirements increase
in anticipation of higher second quarter sales. Working capital is comprised
chiefly of inventories and accounts receivable. Inventories are reported at the
lower of cost or market value with cost being determined primarily by the
first-in, first-out method. Market value is based on replacement cost or net
realizable value, as appropriate. The majority of accounts receivable are due
from certain financial institutions with which the Company has entered into
factoring agreements.
BACKLOG
At October 31, 1997, the Company had a $43,776,000 backlog of orders
believed to be firm, as compared to a $56,755,000 backlog at November 1, 1996.
The decrease is attributable to the sale of the remaining Narrow Fabrics
business. The comparative backlog for the Company's ongoing operations decreased
from $53,683,000 as of the end of the 1996 fiscal year. The current backlog of
orders is expected to be filled prior to the end of fiscal 1998.
3
<PAGE>
CUSTOMERS
In fiscal 1997, the Company's products were sold to more than 1,000
customers, which were primarily domestic manufacturers of apparel and home
furnishings, as well as medical suppliers and retailers. Sales to the 10 largest
customers represented approximately 30.5% of total sales, but no one customer
accounted for more than 5% of total sales. The Company does not believe that the
loss of any one of its customers would have a material adverse effect on the
Company.
MARKETING
The Company's products are sold through a sales force of 15 full-time,
salaried account executives and 16 independent, commissioned sales
representatives who may sell products of other manufacturers, including some
competitors of the Company. The Company maintains sales offices in New York City
and Charlotte, North Carolina. The Company's production is determined in large
part by customer contracts that are received by its sales force. As part of its
marketing effort, the Company continually works to develop new products and
processes and improve existing products and processes, but expenditures for
these activities are not financially identifiable.
In order to improve its customer service capabilities, the Company has
begun utilizing computerized networks with many of its customers in order to
provide "quick response" to customer requirements for more competitive product
deliveries. By providing these customers with certain direct inventory
information, the Company believes that the customers' inventory requirements and
inventory carrying costs can be reduced.
COMPETITION
The textile and apparel industry is highly competitive with a large number
of domestic and foreign manufacturers, none of which dominates the market for
any of the Company's product lines. The Company competes on the basis of
styling, price, product performance and customer service.
U.S. producers, including the Company, are significantly affected by
competition from foreign manufacturers. Rules under the recently enacted General
Agreement on Trade and Tariffs ("GATT") would eliminate restrictions on imports
of textiles and apparel after a ten-year transition period. The North American
Free Trade Agreement ("NAFTA") between the United States, Canada and Mexico has
created the world's largest free-trade zone. The Agreement contains safeguards
that were sought by the U.S. textile industry, including a rule of origin
requirement that products be processed in one of the three countries in order to
benefit from NAFTA. There can be no assurance that either NAFTA or GATT will not
adversely affect the Company.
Because of the absence of published information regarding sales of
competing products by other manufacturers, some of which are privately owned
companies or divisions or subsidiaries of large companies, it is not possible to
determine precisely the market shares of the Company and its competitors for the
Company's various products.
SOURCES OF RAW MATERIALS
The Company purchases from outside suppliers natural and synthetic fibers,
rubber, dyes and chemicals for use in its fabric manufacturing operations. The
Company purchases virtually all of its textured polyester yarns from the leading
independent domestic supplier of such yarns. Fabrics for its apparel
manufacturing operations are supplied by the Company's own fabric manufacturing
operations. The Company has not experienced a significant shortage of raw
materials and believes that such supplies will continue to be available.
4
<PAGE>
EMPLOYEES
As of October 31, 1997, the Company had approximately 1,500 employees with
whom it considers its relationship to be good.
RESEARCH AND DEVELOPMENT
Although the Company pursues improvements in the quality, style and
performance of its products, research and development expenditures have not
accounted for a material portion of the Company's total operating costs.
GOVERNMENTAL REGULATION
The Company believes that it is in substantial compliance with federal,
state and local provisions regulating the release of materials into the
environment, or otherwise relating to the protection of the environment.
The existence of groundwater contaminants primarily of a type often found
in commonly used industrial solvents was discovered at one of the Company's
facilities. This facility has not been operated by the Company since 1980 and
has been sold to another party. The State of North Carolina has issued a permit
to discharge treated groundwater, and treatment systems have been installed to
complete groundwater remediation. The Company's cost to monitor and maintain the
treatment system will be approximately $54,000 annually until the site is
remediated. In addition, there may be other potential environmental conditions
at the site to be addressed, and the remedial plan does not cover these
conditions; however, management does not believe that the cost of taking
corrective action will have a material adverse effect on the Company's financial
condition.
The Company has instituted a corporate policy statement on safety and
environmental affairs to ensure that the Company and its divisions comply with
federal, state and local regulatory standards relating to safety and
environmental pollution controls. Included in this policy is a requirement for
periodic compliance audits at each of the Company's facilities. The Company
believes that costs to be expended now or in the future to ensure compliance
with environmental and safety regulations will not have a material adverse
impact on the financial condition of the Company.
SEGMENT INFORMATION
The Company's ongoing operations are concentrated in a single industry, the
manufacture and production of textiles.
YEAR 2000 IMPACT
A majority of the Company's older computer programs have either
recently been or are in the process of being replaced as part of its multi-year
capital improvement plan. The new programs are year 2000 certified. In addition,
the Company has initiated a review of all remaining systems to modify and
replace portions of older software in order that all computer systems will
function properly with respect to dates in the year 2000 and thereafter. Some of
the older programs were written using two-digits rather than four to define a
year. As a result, these programs have time-sensitive software which would
recognize a date of "00" as 1900 rather than 2000. Failure to correct these
programs could cause a system failure or miscalculation and disrupt operations
or inhibit the Company's ability to conduct normal business activities. The
project to review and correct all programs is estimated to be completed by the
middle of 1999, prior to any anticipated impact on its operating systems. The
Company believes that with modification to existing software and conversions to
new software, the Year 2000 issue will not pose significant operational problems
for its computer systems. The costs of the project are not expected to be
significant.
5
<PAGE>
FORWARD LOOKING INFORMATION
Statements contained in the foregoing discussion and elsewhere in this
report that are not based on historical fact are considered "forward looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. These statements are based on management's present assumptions as to
future trends, and changes in current economic trends, prevailing interest
rates, the availability and cost of raw materials, laws affecting the Company's
business and similar factors could affect the validity of such assumptions.
Item 2. Properties.
The following table sets forth the location and general character of the
principal operating facilities of the Company, which contain approximately
1,165,000 square feet of floor space. All of these Company owned plants are in
good operating condition. The plants operate three full eight-hour shifts per
workday on a five-, six- or seven-day-per-week basis, depending upon market
conditions and customer needs. The Company believes that its facilities are
suitable for their present use and that it has adequate production capacity to
support anticipated sales growth for fiscal 1998.
Location of Plant Purpose Square Feet
- - ----------------- ------- -----------
Rocky Mount, NC Weaving, dyeing and finishing 448,000
of synthetic and blended fabrics
Fayetteville, NC Weaving, dyeing and finishing of 218,000
polyester fabrics
Haw River, NC Dyeing and finishing of polyester 320,000
fabrics
Jefferson, GA Yarn spinning and weaving 179,000
Pursuant to a Credit Agreement dated as of March 15, 1996, as subsequently
amended on December 19, 1997, the Company granted to BankBoston, N.A., as Agent
a first lien on all of the above properties in order to secure the Company's
obligations thereunder.
Item 3. Legal Proceedings.
The Company is a party as plaintiff or defendant to various legal
actions that arose during the normal course of business. In the opinion of
management, final disposition of these actions will not have a material effect
on the Company's financial condition and results of operations.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
6
<PAGE>
Item 4A. Executive Officers of the Registrant.
<TABLE>
<CAPTION>
All Positions and Offices with
Name Age the Registrant Presently Held
- - ---- --- -----------------------------
<S> <C> <C>
Richard L. Kramer 48 Chairman of the Board of Directors
William L. Remley 47 Chief Executive Officer, Vice Chairman
of the Board of Directors
Andrew J. Parise, Jr. 50 President, Chief Operating Officer, and Director
Dane L. Vincent 41 Chief Financial Officer, Vice President, Finance
Treasurer
Gerald A. Rubinfeld 52 President, Texfi Blends division
H. Evans Stembridge 38 Executive Vice President, Operations
Tim L. Courtney 58 Vice President, Administration
Thomas M. Gilreath 55 Corporate Controller, Assistant Secretary
</TABLE>
Mr. Richard L. Kramer was appointed Chairman of the Board of Directors
on November 1, 1994. He had previously served as Vice Chairman of the Board of
Directors since May 24, 1994. Mr. Kramer is Chairman of Mentmore Holdings
Corporation, Chairman of Sunderland Industrial Holdings Corp., Chairman of
Republic Properties Corporation, Chairman of CPT Holdings, Inc., Chairman of
Weldotron Corp., Chairman of Orion Acquisition Corp. II, Chairman of Stellex
Industries, Inc. and Chairman of Precise Technology, Inc.
Mr. William L. Remley was appointed Chief Executive Officer and Vice
Chairman of the Board of Directors on November 1, 1994. He has served as a
Director since May 24, 1994. Mr. Remley is President of Mentmore Holdings
Corporation, President of CPT Holdings, Inc., President of Sunderland Industrial
Holdings Corp., Director of Republic Properties Corporation, President of
Weldotron Corporation, President of Orion Acquisition Corp. II, President and
CEO of Stellex Industries, Inc., and Vice-Chairman, Treasurer, and Director of
Precise Technology, Inc.
Mr. Andrew J. Parise, Jr. was appointed President and Chief Operating
Officer of the Company on November 1, 1994. He previously served as the
Company's Blends Division President from 1992 to 1995 and the division's
Executive Vice President from 1990 to 1992. He has been with the Company in
various sales and operations positions since 1977.
Mr. Dane L. Vincent was appointed Chief Financial Officer during
December 1995 after previously serving as Vice President of Finance and
Treasurer from December 1994. Mr. Vincent joined the Company in 1989 as
Financial Accounting Manager after a career in public accounting, where he
worked for Ernst & Young and other accounting firms.
Mr. Gerald A. Rubinfeld was appointed President of the Blends division
in 1995. He joined the Company in 1984 as the Menswear Marketing Manager and
held various marketing positions prior to his appointment.
Mr. H. Evans Stembridge joined the Company as Executive Vice President
of Operations in June 1997. Mr. Stembridge had over sixteen years of experience
with Spartan Mills, Reeves Industries, and The Bibb Company prior to his current
position with the Company.
Mr. Tim L. Courtney was appointed Vice President of Administration in
1994. He joined the Company's Lively Knits Division (since disbanded) in 1966
and served in a variety of positions with the Company, including Director of
Fiber and Yarn Procurement and VP of Marketing Services for the Blends Division.
Mr. Thomas M. Gilreath was appointed Corporate Controller and Assistant
Secretary in 1994. He joined the Company in 1986 after spending more than 20
years in a variety of accounting positions with the Crompton Company and with
the Bigelow Sanford Carpet Company. Prior to his current position, Mr. Gilreath
was Vice President/Corporate Controller at the Texfi Blends Division.
7
<PAGE>
Item 4(b). Other Information
Not applicable.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters.
The Registrant's Common Stock is traded on the New York Stock Exchange.
The approximate number of holders of record as of January 19, 1998 was 944.
The following table sets forth the high and low sales prices for the
Common Stock on the NYSE composite tape for the period indicated.
Quarter
-------------------------------
First Second Third Fourth
----- ------ ----- ------
1997 Fiscal Year:
High 3-1/4 4-5/8 4-3/4 5-3/8
Low 2-3/8 3-1/8 3-1/2 3-3/16
1996 Fiscal Year:
High 3-1/4 3 3-3/8 3
Low 2-1/2 2-1/2 2-1/4 2-1/4
The Company did not pay dividends on its Common Stock in either fiscal
1997 or 1996 and does not intend to do so in the foreseeable future.
<PAGE>
Item 6. Selected Financial Data
FIVE-YEAR REVIEW OF PERFORMANCE
(Dollar amounts in thousands except per share data and the number of employees)
<TABLE>
<CAPTION>
1997 1996 1995* 1994* 1993
---- ---- ----- ----- ----
Summary of Operations
<S> <C> <C> <C> <C> <C>
Net Sales .................... $ 207,400 $ 192,150 $ 185,685 $ 162,301 $ 237,265
--------- --------- --------- --------- ---------
Cost and expenses:
Cost of goods sold ......... 179,449 166,173 162,642 146,477 212,633
Selling, general and
administrative ........... 15,541 13,897 11,843 9,300 16,328
Restructuring(income)charge (491) 3,257 -- -- --
Interest ................... 10,297 10,254 11,994 10,656 10,190
Equity in loss of joint
venture ................. 1,603 -- -- -- --
Other (income) expense ....... (138) (7) (60) (1,548) 2,000
--------- --------- --------- --------- ---------
Total cost and expenses 206,261 193,574 186,419 164,885 241,151
--------- --------- --------- --------- ---------
Income (loss) before
discontinued operations .. 1,139 (1,424) (734) (2,584) (3,886)
Discontinued operations;
Loss from operations ... -- (5,162) (855) (5,767) (3,244)
Loss on disposal ....... (990) (10,993) (15,325) -- (1,353)
--------- --------- --------- --------- ---------
Net income (loss) .......... 149 (17,579) (16,914) (8,351) (8,483)
========= ========= ========= ========= =========
Redeemable preferred stock:
Dividends paid ........... -- -- -- -- (555)
Net income (loss) available
for common shareholders .. $ 149 $ (17,579) $ (16,914) $ (8,351) $ (9,038)
Net income (loss) from
continuing operations
per share ................ $ .13 $ (.16) $ (.09) $ ( .32) $ (.58)
========= ========= ========= ========= =========
Net income (loss) per share $ .02 $ (2.02) $ (1.96) $ (1.03) $ (1.18)
========= ========= ========= ========= =========
- - --------------------------------------------------------------------------------------------------
Cash Flow Data
Capital expenditures ......... $ 9,099 $ 9,315 $ 2,966 $ 3,333 $ 10,054
Depreciation ................. 5,079 7,412 8,182 9,441 8,693
Cost of equipment placed in
service under operating
leases ..................... 7,690 5,025 2,965 -- --
- - --------------------------------------------------------------------------------------------------
Financial Position at Year End
Receivables .................. $ 40,795 $ 44,570 $ 9,173 $ 10,350 $ 17,138
Inventories .................. 19,914 22,179 28,092 42,131 38,908
Current assets ............... 63,498 68,468 40,089 56,184 60,930
Property, plant & equipment,
net ........................ 28,254 30,223 50,514 75,945 82,211
Total assets ................. 100,067 114,190 96,045 137,180 149,660
Current liabilities .......... 37,362 40,907 37,408 44,013 44,310
Revolving credit line ........ 33,919 38,967 -- -- --
Long-term debt ............... 5,500 9,952 12,471 25,015 32,968
Subordinated debentures ...... 35,631 36,943 40,724 45,127 45,187
Other long-term obligations .. 175 562 1,205 1,842 2,652
Shareholders'(deficit) equity (12,520) (13,141) 4,237 21,183 24,543
Working capital .............. 26,136 27,561 2,681 12,171 16,620
- - --------------------------------------------------------------------------------------------------
Other Data
Number of employees .......... 1,559 2,201 3,221 4,399 4,404
Book Value Per Share ......... $ (1.41) $ (1.50) $ 0.49 $ 2.45 $ 3.19
Common Stock Price Range:
High ......................... $ 5.375 $ 3.375 $ 3.375 $ 5.125 $ 9.000
Low .......................... 2.375 2.250 2.375 2.750 3.755
- - --------------------------------------------------------------------------------------------------
</TABLE>
*Certain amounts in the 1995 and 1994 financial statements have been restated
to reflect the discontinued operations. Refer to Note 13, Discontinued
Operations, included in the Notes to Consolidated Financial Statements for the
Year Ended October 31, 1997.
For the years presented, there were no dividends paid to common stockholders.
<PAGE>
Item 7.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS
OF OPERATIONS AND FINANCIAL CONDITION
RESULTS OF OPERATIONS
Fiscal Year 1997 Compared with Fiscal Year 1996
Net sales from continuing operations for 1997 increased to $207.4
million from $192.2 million, an increase of $15.2 million or 7.9%. This increase
resulted from $20.3 million, or 12.1%, higher sales at the Company's Blends
division which more than offset a $5.1 million, or 21.1%, decline at its Narrow
Fabrics division. The increase at the Blends division was attributable to higher
demand and shipments of synthetic fabrics, which are sold to apparel and
specialty markets. The decrease at the Narrow Fabrics division resulted from
closure of the woven narrow fabrics facility on November 1, 1996 which offset
the increase in sales of knitted narrow fabrics totaling $3.2 million when
compared to 1996.
Cost of goods sold ("CGS") as a percentage of net sales from continuing
operations for fiscal 1997 remained consistent at 86.5% when compared to 1996.
In 1997, increased operating costs at the Company's Blends division of
approximately $3.4 million were completely offset by decreased operating costs
at the Narrow Fabrics division. The increase at the Blends division resulted
from higher labor costs associated with installing new equipment; training
associates to operate this equipment; and manufacturing inefficiencies created
by increasing production rates to maximum levels in order to satisfy higher
customer demand. The decrease at the Narrow Fabrics division resulted from
closing the woven narrow fabrics facility at the end of 1996 and a better mix of
higher margin knitted narrow fabrics sold during 1997.
Selling, general and administrative expenses ("SG&A") as a percentage
of net sales from continuing operations rose to 7.5% in 1997 from 7.2% in 1996.
This increase was attributable to increased distribution costs within the Blends
division in order to accommodate the increased sales volume; costs incurred to
expand into new markets; and higher management fees paid to Mentmore Holdings
Corporation, an entity affiliated with certain executive officers of the
Company.
On November 1, 1996, the Company decided to restructure its narrow
fabrics operations. The first step in the restructuring plan was to close the
Narrow Fabrics division's woven narrow fabrics facility in Graham, North
Carolina and consolidate the remaining Narrow Fabrics division assets into its
knitted narrow fabrics Asheboro, North Carolina facility. As a result, the
Company recorded an initial $3.3 million restructuring charge during 1996 which
primarily consisted of a $2.0 million and $500,000 write-down of property, plant
and equipment and inventory, respectively, to their net realizable value and
$800,000 in other various restructuring costs. During fiscal 1997, the Company
proceeded to liquidate a majority of the Graham facility assets and decided to
place for sale its remaining knitted narrow fabrics business. On October 3,
1997, the Company sold its knitted Narrow Fabrics business, excluding trade and
factor accounts receivable, for $7.7 million, which generated a gain of $3.8
million. Also during the fourth quarter of 1997, the Company recorded an
additional $3.3 million in restructuring charges to further write-down the
remaining assets related to the Graham facility including a $3.0 million
write-down of property, plant and equipment to net realizable value. As of
October 31, 1997, the Company had approximately $1.6 million of assets remaining
for sale related to its knitted narrow fabrics operations of which $1.4 million
was sold subsequent to year-end.
Sales for the Narrow Fabrics division were $18.9 million and $24.0
million for 1997 and 1996, respectively. This division reported net income of
$1.9 million in 1997 and a net loss of $869,000 in 1996, before restructuring
income (charge) of $491,000 and ($3.3 million), respectively.
<PAGE>
Fiscal Year 1997 Compared with Fiscal Year 1996-continued
Interest expense increased by $43,000 to $10.3 million in 1997.
Increased borrowing rates on the Company's revolving and term loan facility more
than offset the reduction in interest expense attributable to the $14.7 million
decrease in total indebtedness.
The equity in loss of joint venture of $1.6 million for 1997 represents
the Company's share of costs related to the startup of Rival Sport, LLC
("Rival"). Rival, a joint venture between the Company and NHL Enterprises, was
created in February 1997 to market and source a branded line of hockey-related
apparel.
During 1996, the Company incurred charges totaling $16.2 million to
discontinue certain operations. This charge included a $10.0 million loss on the
disposal of the Kingstree Knit Apparel division assets including a $3.6 million
write-down of inventory; a $1.9 million write-down of property, plant and
equipment; a $1.9 million write-off of goodwill; an $800,000 reserve for the
liquidation of accounts receivable; and $1.8 million in other various costs,
primarily to run out operations, distribute severance pay, and cancel lease
obligations. During the fourth quarter of 1997, the Company liquidated the
remaining Kingstree Knit Apparel division inventory resulting in an additional
recorded loss from discontinued operations of $1.0 million after reserves. As of
October 31, 1997, the Company had approximately $1.7 million of Kingstree Knit
Apparel division assets held for disposal.
As discussed in the Notes to Consolidated Financial Statements, as of
October 31, 1997, net operating loss carryforwards of approximately $63.2
million remain in effect to offset future taxable income.
Fiscal Year 1996 Compared with Fiscal Year 1995
Net sales from continuing operations for 1996 increased to $192.1
million from $185.7 million, an increase of $6.4 million or 3.5%. This increase
resulted from $12.6 million, or 8%, higher sales at the Company's Blends
division which more than offset a $6.2 million, or 21%, decline at its Narrow
Fabrics division. The increase at the Blends division reflected continued
efforts to offer greater product diversification to its customers and a strong
market for synthetic fabrics, particularly polyester. The decrease at the Narrow
Fabrics division was indicative of the persistent weak market for intimate
apparel fabrics.
CGS as a percentage of net sales from continuing operations, decreased
from 87.6% to 86.5% during 1996. This decrease resulted primarily from the
Company's re-engineering program, which streamlined manufacturing costs through
equipment modernization and reduced cycle times.
SG&A as a percentage of net sales from continuing operations rose to
7.2% in 1996 from 6.4% in 1995. This increase was attributable to the following
factors: increases in selling expenses within the Blends division as it expanded
into new markets; costs associated with improvements to the Company data
processing systems; and the fact that corporate related SG&A costs remained
consistent despite the discontinuance of the manufacturing operations at the
Kingstree Knit Apparel division.
During 1996, the Company closed the Narrow Fabrics division's Graham,
North Carolina facility and reported a $3.3 million restructuring charge from
the consolidation of the remaining Narrow Fabrics division assets and the Graham
facility shut down. Of the total $3.3 million restructuring charge, $2.0 million
and $500,000 represented a write-down of property, plant, and equipment and
inventory, respectively, to their net realizable value and $800,000 in various
other restructuring costs.
<PAGE>
Fiscal Year 1996 Compared with Fiscal Year 1995-continued
Sales for the Narrow Fabrics division were $24.0 million and $30.1
million for the 1996 and 1995 years, respectively. This division reported a net
loss of $869,000 in 1996 and net income of $505,000 in 1995, before a
$3.3 million restructuring charge in 1996.
Interest expense declined by $1.7 million, or 14%, to $10.3 million in
1996. This decrease was the result of reductions in long-term debt outstanding
and improved borrowing rates available through the Company's revolving credit
line as compared to historical factor borrowings.
During 1996, the Company incurred charges totaling $16.2 million to
discontinue certain operations. This charge included a $10.0 million loss on the
disposal of the Kingstree Knit Apparel division assets including a $3.6 million
write-down of inventory; a $1.9 million write-down in property, plant and
equipment; a $1.9 million write-off of goodwill; an $800,000 reserve for the
liquidation of accounts receivable; and $1.8 million in other various costs,
primarily to run out operations, distribute severance pay, and cancel lease
obligations.
The 1996 net loss from discontinued operations includes the Kingstree
Knit Apparel division's loss from operations totaling $5.2 million. This
division generated $41.9 million in net sales, $41.4 million in CGS, $5.7
million in SG&A, and $67,000 in other expense, during 1996 as compared to $71.8
million, $65.0 million, $5.3 million, and $160,000 in net sales, CGS, SG&A, and
other expense, respectively, in 1995.
The 1996 net loss from discontinued operations also included a $1.0
million charge to increase the reserves related to the disposal of its Highland
Yarn Mills and Marion Fabrics greige goods operations which were discontinued
during the 1995 fiscal year. During 1995, the Company recorded a $15.3 million
loss on the disposal of these operations.
CAPITAL RESOURCES AND LIQUIDITY
During 1997 and 1996, the Company's business exhibited seasonality,
primarily due to temporary plant shutdowns during the Christmas/New Year's
holiday season. As a result, sales have been and are expected to be lower during
the first quarter of the fiscal year while working capital requirements increase
in anticipation of higher second quarter sales. Working capital is comprised
chiefly of accounts receivable and inventory.
The Company's operating activities generated net cash of $13.7 million
during the 1997 fiscal year. This cash was a result of net income of $149,000
adjusted for the equity in loss of joint venture ($1.6 million), depreciation
and amortization ($5.9 million) provision for losses on accounts receivable
($199,000), and net loss on disposition of property, plant and equipment
($104,000), none of which required cash. In addition, decreases in accounts
receivable of $3.6 million and inventory of $2.3 million and an increase in
prepaid and other assets of $99,000 contributed to the net cash flow provided by
operations. Net cash from operations of $13.7 million, $16.0 million proceeds
from the sale of property, plant and equipment, $472,000 proceeds from employee
stock plans and $10.0 million in long-term debt proceeds were used to purchase
property, plant and equipment of $9.1 million, repay long-term debt of $16.0
million, repurchase $3.7 million of subordinated debentures, invest $4.9 million
in the joint venture, pay loan amendment costs of $458,000, and reduce the
revolving credit line by $5.1 million.
<PAGE>
CAPITAL RESOURCES AND LIQUIDITY-continued
As of October 31, 1997, working capital equaled $26.1 million; a
decrease of $1.4 million from November 1, 1996. This decrease is due primarily
to decreases in accounts receivable of $3.8 million and inventory of $2.3
million and an increase in accounts payable and accrued expenses of $340,000
which more than offset increases in cash and cash equivalents of $1.0 million
and decreases in current maturities of long-term debt and subordinated
debentures of $3.9 million.
On March 15, 1996, the Company entered into a $74.0 million credit
facility, subsequently amended to $71.0 million. The credit facility consisted
of a $19.0 million term loan and a revolving credit line, which could not exceed
$52.0 million, as amended, during the life of the facility. On December 19,
1997, the Company amended and restated the credit facility. As amended, the
credit facility consists of a $10.0 million term loan payable in sixteen equal
installments and a balloon payment due on May 31, 1999 and a $45.0 million
revolving credit line due to expire in conjunction with the term loan's balloon
payment. The credit facility is secured by substantially all of the Company's
assets. The credit facility provides for the Company to elect interest rates
based upon either a Eurodollar or prime interest rate plus an established
margin. In addition, the Company may elect interest periods ranging from 30 to
180 days depending upon the interest rate election. The Company is required to
comply with a Minimum EBITDA and Minimum Adjusted Fixed Charge Coverage Ratio as
defined by the facility. The facility imposes restrictions on the Company's
rental expense, additional indebtedness, acquisitions, capital expenditures, the
sale or disposal of assets, and the payment of dividends or purchase, redemption
or distribution on capital stock. The Company is currently in compliance with
all of the facility's covenant requirements. As of December 19, 1997, funds
available through the revolving credit line approximated $9.4 million.
As of October 31, 1997, the Company had outstanding approximately $34.4
million of its Senior Subordinated Debentures due August 1, 1999 ("8-3/4%
Debentures") outstanding. The 8-3/4% Debentures, which cannot be called prior to
their maturity date, are unsecured obligations. These debentures contain
covenants that place limitations on the use of proceeds from disposal of assets
and on the incurrence of additional indebtedness and senior indebtedness (as
defined in the governing indenture) if such indebtedness would exceed stated
ratios of capitalization and earnings after such incurrence. The debenture
definition of indebtedness does not include revolver credit line borrowings or
operating lease obligations. The Company is currently prohibited from incurring
additional indebtedness. Debenture holders waived this restriction on the
incurrence of additional indebtedness with respect to the new credit facility.
As a condition to the waiver, the Company executed a Second Supplemental
Indenture dated March 15, 1996 which provided that beginning on the last
business day of September 1998 and continuing on the last business day of each
month thereafter to and including June 1999, the Company will deposit with the
trustee of these debentures $600,000 less an amount equal to 8-3/4% Debentures
repurchased during the period prior to the monthly payment date. Total deposits,
including interest earned thereon, are to be paid as principal and interest
when these debentures are due.
As of October 31, 1997, the Company had approximately $2.4 million of
its Series C Debentures outstanding. The annual interest rate of the Series C
Debentures may be adjusted at the sole discretion of the Company on each April 1
until maturity in 2000. On January 16, 1997, the Company set the interest rate
on the Series C Debentures to 13% for the period April 1, 1997 through March 31,
1998. The Series C Debentures will be redeemable on each April 1 until maturity,
in whole or in part, at the option of the holder or the Company for the
principal amount thereof plus accrued interest through the date of redemption.
<PAGE>
CAPITAL RESOURCES AND LIQUIDITY-continued
The Company has significant lease obligations that are classified as
operating leases and therefore are not reflected in the balance sheet. The
aggregate future minimum lease payments under these leases for their initial or
remaining noncancellable terms were $16.2 million as of October 31, 1997,
including $3.5 million for fiscal 1998. The Company plans to place into service
$5.3 million of machinery and equipment during fiscal 1998. These capital
investments primarily will improve dyeing and finishing capabilities and replace
older weaving equipment with new looms in order to improve production speed,
efficiency, and product quality, as well as expand styling diversity. Management
anticipates that substantially all of the equipment will be placed into service
through operating leases and thus not included in the Company's balance sheet.
As of October 31, 1997, the Company held $3.3 million of property,
plant and equipment for disposal, which remain from its discontinued Kingstree
Knits Apparel division and closed woven narrow fabrics operations. Subsequent to
year-end, the Graham, North Carolina facility was sold for cash of approximately
$1.4 million. All proceeds were used to reduce revolving credit line
obligations.
On December 18, 1997, the Company sold its investment in the joint
venture, Rival to Clarendon Holdings, LLC ("Clarendon"), an affiliate of certain
executive officers of the Company. In exchange for the Company's 50% ownership
interest, it received a secured $4.5 million single balloon payment note due
December 15, 2007, which bears interest annually of 5%. The note provides for
mandatory prepayment(s) when Clarendon receives a cash distribution(s) from
Rival pursuant to the terms of the operating agreement between Clarendon and NHL
Enterprises or in the event Clarendon declares bankruptcy or fails to make a
payment when due under the note. The Company's note represents its net
investment in Rival on the date of sale. While the sale does not immediately
provide cash to the Company, it eliminates the Company's obligation to invest
additional cash in this startup joint venture in the future. During 1997, the
Company invested $4.9 million in Rival.
Management believes cash flows from operations and funds available
under the revolving credit line will provide the Company with sufficient sources
of funds to meet its fiscal 1998 cash needs and, assuming no significant
deterioration in current market conditions or interest rates, for the
foreseeable future.
ENVIORNMENTAL MATTERS AND LIQUIDATION
In 1992 the Company adopted a corporate policy statement on safety and
environmental affairs to ensure that the Company and its divisions comply with
all federal, state and local regulatory standards relating to safety and
environmental pollution controls. Included in this policy is a requirement for
periodic compliance audits at each of the Company's facilities. The Company has
addressed and continues to address certain environmental conditions and
potential conditions at a former plant site. The Company believes that costs to
be expended now or in the future to ensure compliance with environmental and
safety regulations will not have a material adverse impact on the financial
condition of the Company.
The Company is also involved in various litigation arising in the
ordinary course of business. The final resolution of these matters cannot be
determined; however, it is management's opinion these matters will not have a
material adverse effect on the Company's financial position or future liquidity.
<PAGE>
YEAR 2000
A majority of the Company's older computer programs have either
recently been or are in the process of being replaced as part of its multi-year
capital improvement plan. The new programs are year 2000 certified. In addition,
the Company has initiated a review of all remaining systems to modify and
replace portions of older software in order that all computer systems will
function properly with respect to dates in the year 2000 and thereafter. Some of
the older programs were written using two-digits rather than four to define a
year. As a result, these programs have time-sensitive software which would
recognize a date of "00" as 1900 rather than 2000. Failure to correct these
programs could cause a system failure or miscalculation and disrupt operations
or inhibit the Company's ability to conduct normal business activities. The
project to review and correct all programs is estimated to be completed by the
middle of 1999, prior to any anticipated impact on its operating systems. The
Company believes that with modification to existing software and conversions to
new software, the Year 2000 issue will not pose significant operational problems
for its computer systems. The costs of the project are not expected to be
significant.
INFLATION
The Company believes that inflation affects its business to an extent
no greater than it affects the textile industry generally and the economy as a
whole.
FORWARD LOOKING INFORMATION
Statements contained in the foregoing discussion and elsewhere in this
report that are not based on historical fact are considered "forward looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. These statements are based on management's present assumptions as to
future trends, and changes in current economic trends, prevailing interest
rates, availability and cost of raw materials, laws affecting the Company's
business and similar factors could affect the validity of such assumptions.
<PAGE>
Item 8. Financial Statements and Supplementary Data
CONSOLIDATED STATEMENTS OF OPERATIONS
For the fiscal years ended October 31, 1997, November 1, 1996 and November 3,
1995 (Dollar amounts in thousands except number of shares and per share data)
1997 1996 1995
---- ---- ----
Net Sales ..................................... $207,400 $192,150 $185,685
Cost and Expenses:
Cost of goods sold .......................... 179,449 166,173 162,642
Selling, general and administrative ......... 15,541 13,897 11,843
Restructuring (income) charge................ (491) 3,257 --
--------- --------- ---------
Total ................................... 194,499 183,327 174,485
--------- --------- ---------
Operating Income .............................. 12,901 8,823 11,200
Other Expense (Income):
Interest .................................... 10,297 10,254 11,994
Equity in loss of joint venture ............. 1,603 -- --
Other, net .................................. (138) (7) (60)
--------- --------- ---------
Total ................................... 11,762 10,247 11,934
--------- --------- ---------
Net Income (Loss) from
Continuing Operations ...................... 1,139 (1,424) (734)
Discontinued Operations:
Loss from operations of discontinued
operations................................. -- (5,162) (855)
Loss on disposal of discontinued
operations................................. (990) (10,993) (15,325)
--------- --------- ---------
Net Loss from Discontinued Operations.......... (990) (16,155) (16,180)
--------- --------- ---------
Net Income (Loss).............................. $ 149 $(17,579) $(16,914)
========= ========= =========
Weighted Average Number of Shares ............. 8,909,372 8,696,177 8,651,668
========= ========= =========
Income (Loss) Per Share
Income (loss) from
continuing operations ................ $ .13 $ (.16) $ (.09)
Loss from discontinued operations.......... (.11) (1.86) (1.87)
--------- --------- ---------
Net income (loss).......................... $ .02 $ (2.02) $ (1.96)
========= ========= =========
See notes to consolidated financial statements.
<PAGE>
CONSOLIDATED BALANCE SHEETS
October 31, 1997 and November 1, 1996
(Dollar amounts in thousands)
ASSETS 1997 1996
- - ------ ---- ----
Current Assets:
Cash and cash equivalents ......................... $ 1,434 $ 418
Receivables:
Due from factor ................................. 35,494 40,885
Trade, less allowances ($645-1997; $1,899-1996).. 4,486 3,555
Other ........................................... 815 130
Inventories ....................................... 19,914 22,179
Prepaid expenses .................................. 1,355 1,301
-------- --------
Total......................................... 63,498 68,468
Property, Plant and Equipment - net ................. 28,254 30,223
Property, Plant and Equipment Held for
Disposal - net................................... 3,318 13,461
Investment in Joint Venture ......................... 3,370 87
Other Assets ........................................ 1,627 1,951
-------- --------
$100,067 $114,190
======== ========
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current Liabilities:
Current maturities of long-term debt .............. $ 5,015 $ 6,563
Current maturities of subordinated debentures...... 1,200 3,537
Accounts payable .................................. 28,110 22,182
Other liabilities.................................. 3,037 8,625
-------- --------
Total......................................... 37,362 40,907
Revolving Credit Line ............................... 33,919 38,967
Long-term Debt ...................................... 5,500 9,952
Subordinated Debentures ............................. 35,631 36,943
Other Long-term Obligations ......................... 175 562
Contingent Liabilities and Commitments
Shareholders' Deficit:
Common stock, $1.00 par value - authorized 20,000,000
shares; outstanding 8,859,098 shares in 1997 and
8,735,491 shares in 1996 ........................ 8,859 8,735
Additional paid-in capital ........................ 25,534 25,186
Accumulated deficit ............................... (46,913) (47,062)
-------- --------
Total.......................................... (12,520) (13,141)
-------- --------
$100,067 $114,190
======== ========
See notes to consolidated financial statements.
<PAGE>
CONSOLIDATED STATEMENTS OF COMMON SHAREHOLDERS' (DEFICIT) EQUITY
For the fiscal years ending October 31, 1997, November 1, 1996 and
November 3, 1995
(Dollar amounts in thousands)
<TABLE>
<CAPTION>
Common Stock
$1 Par Value Additional
----------------- Paid-in Accumulated
Shares Amount Capital Deficit Total
------ ------ ------- ------- -----
<S> <C> <C> <C> <C> <C>
October 28, 1994 ............ 8,652,621 $8,653 $25,099 $(12,569) $21,183
Net loss for fiscal 1995... (16,914) (16,914)
Restricted stock forfeitures (5,000) (5) (34) (39)
Stock issued under various
employee stock plans..... 3,069 3 4 7
--------- ------ ------- -------- --------
November 3, 1995 ............ 8,650,690 8,651 25,069 (29,483) 4,237
Net loss for fiscal 1996... (17,579) (17,579)
Stock issued under various
employee stock plans..... 84,801 84 117 201
--------- ------ ------- -------- --------
November 1, 1996 ............ 8,735,491 $8,735 $25,186 $(47,062) $(13,141)
Net income for fiscal 1997. 149 149
Stock issued to directors.. 105,735 106 320 426
Stock issued under various
employee stock plans..... 17,872 18 28 46
--------- ------ ------- -------- --------
October 31, 1997 ............ 8,859,098 $8,859 $25,534 $(46,913) $(12,520)
========= ====== ======= ======== ========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the fiscal years ended October 31, 1997, November 1, 1996 and
November 3, 1995
(Dollar Amounts in thousands)
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Operating Activities:
Net income (loss)............................... $ 149 $(17,579) $(16,914)
Adjustments to reconcile net income (loss) to net
cash provided by (used in)
operating activities:
Equity in loss of joint venture .......... 1,603 -- --
Depreciation and amortization ............... 5,859 8,405 9,147
Provision for losses on accounts receivable . 199 2,102 3,196
Loss on disposition of property,
plant and equipment........................ 104 4,247 9,356
Loss on disposition of unamortized
goodwill ............................... -- 1,903 --
Change in operating assets and liabilities:
Accounts receivable ..................... 3,576 (37,499) (2,019)
Inventories ............................. 2,265 5,913 14,039
Prepaid and other assets ................ (52) 757 386
Accounts payable and other liabilities .. (47) 1,208 (4,232)
--------- --------- --------
Net Cash Provided by (Used in)
Operating Activities ..................... 13,656 (30,543) 12,959
--------- --------- --------
Investing Activities:
Purchases of property, plant and equipment ...... (9,099) (9,315) (2,966)
Proceeds from sale of property, plant and
equipment ..................................... 16,028 5,494 9,434
--------- --------- --------
Net Cash Provided by (Used in) Investing
Activities .................................. 6,929 (3,821) 6,468
--------- --------- --------
Financing Activities:
Proceeds from long-term debt borrowings ......... 10,000 19,000 --
Net (repayments) borrowings from Revolver Debt .. (5,048) 38,967 --
Payments on long-term debt and capital lease
obligations ................................... (16,000) (22,919) (15,554)
Payments for repurchase of subordinated debentures (3,649) (244) (4,403)
Investment in joint venture ..................... (4,886) -- --
Capitalized loan costs........................... (458) (970) (159)
Proceeds from stock plans, net................... 472 201 (32)
--------- --------- --------
Net Cash (Used in) Provided by Financing
Activities .................................. (19,569) 34,035 (20,148)
--------- --------- --------
Increase (Decrease) in
Cash and Cash Equivalents ................ 1,016 (329) (721)
Cash and Cash Equivalents at
Beginning of Period ...................... 418 747 1,468
--------- --------- --------
Cash and Cash Equivalents at
End of Period ............................ $ 1,434 $ 418 $ 747
========= ========= ========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
October 31, 1997, November 1, 1996 and November 3, 1995
1 Summary of Significant Accounting Policies
A. Company
Texfi Industries, Inc. and one wholly-owned inactive subsidiary (the
"Company") is one of the nation's leading manufacturers of synthetic fabrics
which are marketed throughout the United States, as well as Europe. The
Company's products are either made primarily from polyester yarns or polyester
blended with rayon, lycra, or wool. Products are sold and distributed to a
variety of manufacturers in the womenswear and menswear apparel markets, as well
as home furnishings and medical industries.
B. Principles of Consolidation
The consolidated financial statements include the accounts of the
Company's divisions and its subsidiary. Intercompany transactions and profits
and losses have been eliminated.
C. Fiscal Year
The Company's operations are based on a fifty-two or fifty-three week
fiscal year ending on the Friday closest to October 31. The 1997 and 1996 fiscal
years include 52 weeks while the 1995 fiscal year includes 53 weeks.
D. Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions which affect the amounts reported in these financial statements and
accompanying footnotes. Actual results may differ from those estimates and
assumptions.
E. Cash Equivalents
The Company considers all highly liquid investments with a maturity of
three months or less when purchased to be cash equivalents.
F. Accounts Receivable - Factored
The Company has entered into factoring agreements with several
financial institutions whereby it may assign certain receivables generally
without recourse as to credit risk.
G. Inventories
Inventories are stated at the lower of cost or market. Cost is
determined primarily on the basis of the first-in, first-out method. Market is
based on replacement cost or net realizable value, as appropriate.
H. Property, Plant and Equipment
Property, plant and equipment is stated at cost. For financial
statement purposes, depreciation is determined primarily by the straight-line
method. For income tax purposes, the straight-line and accelerated methods are
used.
I. Impairment of Long-lived Assets
When circumstances mandate, the Company evaluates the recoverability of
its long-lived assets by comparing estimated future undiscounted cash flows with
the assets' carrying value to determine whether a write-down to market value or
discounted cash flow is necessary.
<PAGE>
1 Summary of Significant Accounting Policies-continued
J. Revenue Recognition
Sales are recorded upon shipment or designation of specific goods for
later shipment at customers' request with related risk of ownership passing to
such customers.
K. Income Taxes
The Company accounts for income taxes using the liability method. Under
this method, deferred tax assets and liabilities are determined based on the
difference between the financial statement and tax bases of assets and
liabilities as measured using the enacted rates and laws which will be in effect
when these differences are expected to reverse. Deferred tax expense results
from the change in the liability accounts for deferred taxes.
L. Income (Loss) Per Share
Net income (loss) per share has been computed using the weighted
average number of common shares and common share equivalents outstanding during
the year. The difference between primary and fully diluted net income (loss) per
share is not material during the years presented.
M. Recently Issued Accounting Standards
In February 1997, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards ("SFAS") 128, "Earnings per
Share", which the Company is required to adopt in the first quarter of its 1998
fiscal year. At that time, the Company will be required to change its current
method used to compute earnings per share and to restate all prior periods
reported. Under the new requirements for calculating basic earnings per share,
the dilutive effect of stock options and other common stock equivalents will be
excluded. The impact of SFAS 128 on the calculation of both basic and dilutive
earnings per share for 1997, 1996, and 1995 will be immaterial.
In June 1997, the FASB issued SFAS 130, "Reporting Comprehensive
Income" and SFAS 131, "Disclosures about Segments of an Enterprise and Related
Information" both of which are effective for fiscal years beginning after
December 15, 1997. SFAS 130 establishes standards for reporting and display of
comprehensive income and its components in financial statements. SFAS 131
changes the way in which public companies report segment information in annual
financial statements and requires those companies to report selected segment
information in interim financial statements to stockholders. The Company will
adopt SFAS 130 and 131 during its 1999 fiscal year and will include the
financial statement disclosures as required. The application of SFAS 130 and 131
will not impact the Company's financial position or results from operations.
2 Accounts Receivable - Due from factor
Concentration of credit risk is limited due to the large number of
customers to which the Company sells its products (no one customer accounted for
more than 5% of the Company's 1997 net sales or 4% of the Company's 1996 net
sales) and the use of several factors to assign the invoices for sales to its
customers. The Company generally requires no collateral for its accounts
receivable.
Interest paid on factor advances and other factor related fees in 1997,
1996 and 1995 approximated $1,181,000, $1,442,000 and $4,676,000, respectively.
<PAGE>
3 Inventories
Inventories at October 31, 1997 and November 1, 1996 are summarized as
follows:
1997 1996
-------- --------
(in thousands)
Finished goods ................................... $ 5,225 $ 10,304
Goods in process ................................. 10,092 8,765
Raw materials .................................... 2,845 4,104
Supplies ......................................... 2,595 3,337
-------- --------
Total ................ 20,757 26,510
Less reserves .................................... 843 4,331
-------- --------
Inventories - net................................. $ 19,914 $ 22,179
======== ========
4 Property, Plant and Equipment
Property, plant and equipment at October 31, 1997 and November 1, 1996
consists of the following:
1997 1996
-------- --------
(in thousands)
Land and land improvements ....................... $ 2,220 $ 2,358
Buildings ........................................ 16,019 15,170
Machinery and equipment .......................... 59,042 56,306
Construction in progress ......................... 1,143 2,218
-------- --------
Total ......................... 78,424 76,052
Less accumulated depreciation .................... 50,170 45,829
-------- --------
Property, plant and equipment - net .............. $ 28,254 $ 30,223
======== ========
Depreciation expense approximated $5,079,000, $7,412,000, and
$8,182,000 during 1997, 1996 and 1995, respectively.
5 Long-term Debt, Revolving Credit Line and Pledged Assets
Long-term debt at October 31, 1997 and November 1, 1996 consists of the
following:
1997 1996
-------- --------
(in thousands)
Term loan with variable interest, collateralized
by property, plant, and equipment with a net
book value of $29,979,000 ..................... $10,000 $15,367
Term loans at 6.75%, payable in monthly
installments plus interest through November 1,
1998; collateralized by property, plant and
equipment with a net book value of
$1,593,000 .................................... 515 1,148
-------- --------
Total .......................... 10,515 16,515
Less current maturities ......................... 5,015 6,563
-------- --------
Due after one year .............................. $ 5,500 $ 9,952
======== ========
On March 15, 1996, the Company entered into a $74.0 million credit
facility. On December 19, 1997, the credit facility was amended and restated to
effect the following changes: (1) extend the term loan balance to $10.0 million
and revise the related payment schedule to include 16 equal monthly installments
of $500,000 beginning in February 1998 and a $2.0 million balloon payment due
May 31, 1999; (2) reduce the revolving credit line to $45.0 million; (3) impose
a Minimum EBITDA and Minimum Adjusted Fixed Charge Coverage Ratio and (4) place
restrictions on fiscal year rental expense, additional indebtedness,
acquisitions, capital expenditures, the sale or disposal of fixed assets, and
the payment of dividends or purchase, redemption or distribution on capital
stock. As of October 31, 1997, the Company had complied with all the facility's
covenants.
<PAGE>
5 Long-term Debt, Revolving Credit Line and Pledged Assets-continued
As of October 31, 1997, after giving effect to the December 19, 1997
amendment and restatement, the revolving credit line equaled $33.9 million.
Revolving credit line availability is defined by the credit facility as the sum
of 90% of eligible factor accounts receivable, 85% of eligible trade accounts
receivable, and 50% of eligible inventory (up to a maximum of $12.0 million)
less outstanding revolving credit line debt and letters of credit. As of
December 19, 1997 the Company had revolving credit line availability
approximating $9.4 million.
The credit facility is secured by substantially all of the Company's
assets. The credit facility provides for the Company to elect interest rates
based upon a Eurodollar or prime interest rate plus an established margin. In
addition, the Company may elect interest periods ranging from 30 to 180 days
depending upon the various interest rate.
Interest paid on debt, other than debentures, in 1997, 1996 and 1995
was $5,115,000, $3,256,000, and $2,504,000, respectively.
6 Subordinated Debentures
Debentures outstanding at October 31, 1997 and November 1, 1996 consist
of the following:
1997 1996
-------- --------
(in thousands)
Senior Subordinated Debentures, 8-3/4%, due
August 1, 1999 ............................... $34,400 $34,420
Subordinated Extendible Debentures, 11%, due
April 1, 2000 (Series C) ..................... 2,431 2,523
Convertible Senior Subordinated Debentures,
11-1/4%, due October 1, 1997 ................. -- 3,537
-------- --------
Total .......................... 36,831 40,480
Less current maturities ........................ 1,200 3,537
-------- --------
Due after one year ............................. $35,631 $36,943
======== ========
In September 1993, the Company issued $34.5 million in principal amount
of Senior Subordinated Debentures due August 1, 1999 ("8-3/4% Debentures".) The
annual interest rate of these debentures is 8.75%, payable semiannually on
August 1 and February 1 of each year. The 8-3/4% Debentures, which cannot be
called prior to their maturity date, are unsecured obligations but contain
covenants that place limitations on the use of proceeds from the disposal of
assets and the incurrence of additional indebtedness and senior indebtedness (as
defined in the indenture) if such indebtedness would exceed stated ratios of
capitalization and earnings after such incurrence. The debenture definition of
indebtedness does not include revolver credit line borrowings or operating lease
obligations. The Company is currently prohibited from incurring additional
indebtedness because of a violation of the defined limitations. Debenture
holders waived this restriction on the incurrence of additional indebtedness
with respect to the new credit facility. As a condition to the waiver, the
Company executed a Second Supplemental Indenture which provided that beginning
on the last business day of September 1998 and continuing on the last business
day of each month thereafter to and including June 1999, the Company will
deposit with the trustee of these debentures $600,000 less an amount equal to
8-3/4% Debentures repurchased during the period prior to the monthly payment
date. Total deposits, including interest earned thereon, are to be paid as
principal and interest when these debentures are due. $1.2 million of deposits
due in 1998 are classified as a current liability as of October 31, 1997.
<PAGE>
6 Subordinated Debentures-continued
In April 1990, the Company issued $7.1 million in principal amount of
Subordinated Extendible Debentures due April 1, 2000, Series C (11%) (the
"Series C Debentures"). The annual interest rate of the Series C Debentures may
be adjusted at the sole discretion of the Company on each April 1 until maturity
in 2000. On January 16, 1997, the Company set the interest rate on the Series C
Debentures to 13% for the period April 1, 1997 through March 31, 1998. The
Series C Debentures will be redeemable on each April 1 until maturity, in whole
or in part, at the option of the holder or the Company for the principal amount
thereof plus accrued interest through the date of redemption.
During 1997, the Company paid off its 11-1/4% Convertible Senior
Subordinated Debentures which were due October 1, 1997.
Interest paid on subordinated debentures in 1997, 1996 and 1995 was
$3,715,000, $3,753,000 and $3,984,000, respectively.
7 Stock Options and Stock Purchase Rights
At October 31, 1997, options to purchase previously unissued shares of
common stock were outstanding under a stock option plan. Payment for shares
purchased upon exercise of an option granted under the plan may be made either
in cash or in common stock of the Company. Stock options granted have a maximum
term of ten years.
The Company has elected to comply with Accounting Principles Board
("APB") Opinion Number 25, "Accounting for Stock Issued to Employees." Under APB
25, no compensation expense is recognized for the Company's employee stock
options because the option exercise price equals the market price of the
underlying stock on the date of grant.
Pro forma information regarding net income (loss) and net income (loss)
per share is required when APB 25 accounting is elected. Pro forma information
was determined as if the Company had accounted for its employee stock options
under the fair value method of SFAS 123, "Accounting for Stock-Based
Compensation." During the initial phase-in period, the pro forma amounts were
determined based on stock option grants during 1997 and 1996. Therefore, the pro
forma amounts for compensation cost may not be indicative of the effects on pro
forma net income(loss) and net income(loss) per share for future years.
The fair values for options were estimated on the grant date using a
Black-Scholes option pricing method. For purposes of pro forma disclosures, the
estimated fair values of the options are amortized to expense over the option's
vesting period.
Information with respect to stock options outstanding is as follows:
<TABLE>
<CAPTION>
1997 1996 1995
-------------------------------------------------------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Options Price Options Price Options Price
------- ----- ------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C>
Beginning
of year... 311,664 $3.82 293,915 $4.36 366,488 $6.31
Granted.... 185,000 $4.00 60,000 $3.25 225,000 $3.62
Canceled... (38,864) $5.49 (42,251) $6.75 (297,573) $6.20
------- ----- ------- ----- -------- -----
End of
year..... 457,800 $3.75 311,664 $3.82 293,915 $4.36
======= ===== ======= ===== ======= =====
</TABLE>
<PAGE>
7 Stock Options and Stock Purchase Rights-continued
1997 1996 1995
---- ---- ----
Option exercisable
at yearend 242,300 138,214 53,390
======= ======= ======
Options available
for granting
at yearend 400,299 546,435 564,184
======= ======= ======
Per share
weighted average
fair value of
options granted $ 2.76 $ 2.07 $ 2.58
======= ======= ======
Weighted average years of
contractual life of
stock options granted 8.65 5.00 5.00
======= ======= ======
Risk-free
interest rate 5% 5% 5%
======= ======= ======
Volatility
factor .6046 .6319 .5628
======= ======= ======
Dividend yield 0% 0% 0%
======= ======= ======
1997 1996
---- ----
(in thousands)
Net income (loss) as reported................... $ 149 $(17,579)
======= ========
Pro forma net income (loss)..................... $ 124 $(17,582)
======= ========
1997 1996
---- ----
Net income (loss) per share as reported......... $ .02 $( 2.02)
======= ========
Pro forma net income (loss) per share .......... $ .01 $( 2.02)
======= ========
Effective July 22, 1988, the Board of Directors of the Company adopted
a Share Purchase Rights Plan and approved the distribution to stockholders of
record on August 9, 1988 of one Preferred Share Purchase Right ("Right") for
each outstanding share of the Company's common stock. Each Right, when
exercisable, generally entitles common stockholders to purchase one
one-hundredth of a share of a new series of preferred stock, designated as
Series A Junior Participating Preferred Stock, at a price of $30. The Rights
will generally be exercisable and transferable apart from the Company's common
stock upon acquisition by a person or group of 30% or more of the Company's
common stock (amended by the Board of Directors in 1994 to change 15% to 30%),
the announcement of a tender offer for 20% or more of the Company's common stock
or a determination by the Board of Directors that any holder of 12% or more of
the Company's common stock is an "adverse person." The Rights will expire on
August 9, 1998, unless the Company's Board of Directors extends such date or the
Rights are redeemed prior to that time.
<PAGE>
8 Common Shareholders' Deficit
At October 31, 1997, shares of common stock were reserved for possible
issuance as follows:
Stock options (Note 7) ....................................... 858,099
Stock options granted to an entity affiliated with
certain Company executive officers ......................... 600,000
1990 Executive Stock Purchase Plan ........................... 283,892
Directors' Deferred Stock Compensation Plan .................. 57,153
---------
Total ........................................ 1,799,144
=========
9 Income Taxes
As of October 31, 1997, the Company had net operating loss carryforwards of
$63.2 million for income tax purposes which will begin to expire in 2006. For
financial reporting purposes, a valuation allowance of $25.1 million has been
recognized to offset the deferred tax asset related to these carryforwards. The
Company has Alternative Minimum Tax credits totaling $377,000 and Investment Tax
credits of $29,000 available to reduce income taxes payable in future periods.
The Investment Tax credits expire during 1997 through 2001. For 1997, the
Company's current tax expense of $52,000 was completely offset by a tax benefit
from the utilization of net operating tax loss carryforwards.
Deferred income tax expense results from temporary differences related
primarily to net operating loss carryforwards. Significant components of the
Company's deferred tax asset as of October 31, 1997 and November 1, 1996 are as
follows:
1997 1996
(in thousands)
Deferred Tax Liability:
Tax over book amortization $ 493 $ --
Deferred Tax Asset:
Book over tax amortization -- 26
Net operating loss carryforwards 25,279 24,079
Allowance for bad debts 258 760
Contribution rollover 8 29
Lawsuit settlement 66 66
------- -------
Total deferred tax assets 25,611 24,960
Valuation Allowance (25,118) (24,960)
------- -------
Net Deferred tax assets 493 --
------- -------
Net deferred tax liability $ -- $ --
======== ========
10 Employee Benefit Plan
The Company maintains a defined contribution plan (401(k)) covering
substantially all employees who have completed six months of service. The plan
requires the Company to match up to $150 per year for each participating
employee's contributions. Discretionary Company contributions are determined
annually by the Board of Directors based on results of operations. These
discretionary contributions may either match employee amounts or represent fixed
amounts. The Company contributed approximately $45,000, $127,000, and $146,000
in 1997, 1996 and 1995, respectively.
Subsequent to October 31, 1997, the Company revised its match to 50% of
participating employee contributions up to a maximum of 2.5% of each individual
employee's gross wages.
<PAGE>
11 Rental Expense and Lease Obligations
Rental expense, primarily for machinery and equipment, is summarized as
follows:
1997 1996 1995
---- ---- ----
(in thousands)
Gross rentals ....................... $4,921 $4,255 $4,380
Less sublease rentals............... 154 133 371
------ ------ ------
Rental expense, net ................. $4,767 $4,122 $4,009
====== ====== ======
Future obligations for minimum rentals under operating leases that have
initial or remaining noncancellable lease terms in excess of one year at October
31, 1997 and rentals to be received under noncancellable subleases are as
follows:
Operating Leases
-----------------------------
Net
Minimum Sublease Minimum
Fiscal Year Rentals Rentals Rentals
----------- ------- ------- -------
(in thousands)
1998 ........................... $3,616 $125 $3,491
1999 ........................... 3,555 88 3,467
2000 ........................... 3,290 79 3,211
2001 ........................... 2,917 79 2,838
2002 ........................... 1,399 79 1,320
Thereafter ..................... 2,080 178 1,902
------- ------- -------
Total minimum lease payments ... $16,857 $ 628 $16,229
======= ======= =======
Certain operating leases contain renewal options ranging from one to
five years and/or contain purchase options, generally approximating fair market
value.
During the 1997 fiscal year, the Company placed into service $7.7
million of machinery and equipment through various sale-lease back transactions.
12 Restructuring Charge
During its 1996 fiscal year, the Company closed its Narrow Fabrics
division's Graham, North Carolina facility and recorded a $3.3 million
restructuring charge from the consolidation of the remaining Narrow Fabrics
division assets and the Graham facility shutdown. The total $3.3 million
restructuring charge primarily included a $2.0 million and $500,000 write-down
of property, plant, and equipment and inventory, respectively, to their net
realizable value and $800,000 in various other restructuring costs. During 1997,
the Company incurred an additional $3.3 million in restructuring charges
consisting primarily of a $3.0 million write-down of property, plant and
equipment to its net realizable value. On October 3, 1997, the Company sold its
remaining Narrow Fabrics business, excluding trade and factor accounts
receivable, for $7.7 million. The sale generated a $3.8 million gain which was
netted against the $3.3 million restructuring charge.
Sales for the Narrow Fabrics division were $18.9 million, $24.0
million, and $30.1 million for the 1997, 1996 and 1995 years, respectively. This
division's net income(loss) before restructuring (income) charge was
$1.9 million, ($869,000), and $505,000 for the 1997, 1996 and 1995 years,
respectively.
<PAGE>
13 Discontinued Operations
During the 1996 fiscal year, the Company incurred charges totaling
$16.2 million in connection with the discontinuance of certain operations. In
the 1996 fiscal fourth quarter, the Company discontinued the manufacturing
operations of its Kingstree Knit Apparel division. The $10.0 million loss on
disposal of this division represents write-downs of $3.6 million in inventory,
$1.9 million in property, plant and equipment, $1.9 million in goodwill,
$800,000 in accounts receivable, and $1.8 million in other various costs. In
addition, the loss on disposal of discontinued operations includes $1.0 million
to adjust the reserves related to disposal of its Highland Yarn Mills and Marion
Fabrics greige goods operations which were discontinued during the 1995 fiscal
year.
In addition, the 1996 loss on disposal of discontinued operations
includes $1.0 million to adjust the reserves related to disposal of its Highland
Yarn Mills and Marion Fabrics greige goods operations which were discontinued
during the 1995 fiscal year.
The 1996 net loss from discontinued operations represents the
manufacturing operations of the Kingstree Knit Apparel division totaling $5.2
million. The Kingstree Knit Apparel division generated $41.9 million and $71.8
million in net sales in 1996 and 1995, respectively. 1995 operating income for
this division totaling $1.4 million ($.16 per share) has been restated in the
Consolidated Statements of Operations.
The 1997 loss on disposal of discontinued operations of $1.0 million is
primarily the write-off of inventory remaining from this division's operations.
Property, plant and equipment held for disposal at October 31, 1997 and
November 1, 1996 consists of the following:
1997 1996
---- ----
(in thousands)
Land and land improvements ....................... $ 222 $ 459
Buildings ........................................ 4,290 7,705
Machinery, equipment, etc. ....................... 1,684 27,464
----- ------
Total ....................... 6,196 35,628
Less accumulated depreciation .................... 1,954 18,288
Less reserve to net realizable value ............. 924 3,879
----- ------
Property, plant and equipment held for
disposal - net ............................. $ 3,318 $ 13,461
======== ========
These assets have been valued based upon either appraisals or inquiries
of brokers and equipment dealers and will be disposed of by an orderly
liquidation.
Subsequent to October 31, 1997, the Company sold approximately $1.4
million of assets held for sale related to its knitted narrow fabrics
operations.
<PAGE>
14 Related Party Transactions
Effective April 1, 1997, the Company entered into a management advisory
services agreement with an entity affiliated with certain of the Company's
executive officers whereby the entity is paid for management consulting services
which approximated $825,000 during 1997. This entity shares office space with
Company associates in New York.
15 Joint Venture
On December 18, 1997, the Company sold its 50% ownership interest in
its joint venture to an entity affiliated with certain of the Company's
executive officers. The Company received a secured $4.5 million ten-year note
which bears interest at 5.0% per annum in exchange for its 50% ownership
interest which approximated $3.4 million at October 31, 1997 plus cash invested
in the joint venture subsequent to year end through the date of sale. The
Company accounted for the joint venture which was formed in February 1997 using
the equity method. As of October 31, 1997, the joint venture had assets,
primarily inventory, approximating $1.8 million. In addition, the joint venture
recorded 1997 sales and net loss of $259,000 and $3.2 million, respectively.
16 Contingent Liabilities and Commitments
The Company is involved in various litigation arising in the ordinary
course of business. The final outcome of these matters cannot be determined;
however, it is management's opinion that the final resolution of these matters
will not have a material adverse effect on the Company's financial position or
future liquidity.
<PAGE>
Item 8. Report of Independent Auditors
Board of Directors and Shareholders of
Texfi Industries, Inc.
We have audited the accompanying balance sheets of Texfi Industries, Inc. and
subsidiary as of October 31, 1997 and November 1, 1996, and the related
statements of operations, shareholders' (deficit) equity and cash flows for the
three years in the period ended October 31, 1997. Our audits also included the
financial statement schedule listed in the Index at Item 14(a). These financial
statements and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Texfi Industries, Inc. and
subsidiary as of October 31, 1997 and November 1, 1996, and the results of their
operations and their cash flows for each of the three years in the period ended
October 31, 1997 in conformity with generally accepted accounting principles.
Also, in our opinion, the related financial statement schedule, when considered
in relation to the basic financial statements taken as a whole, presents fairly
in all material respects the information set forth therein.
Ernst & Young
Raleigh, North Carolina
December 30, 1997
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant.
Information with respect to Directors, appearing under the heading
"Election of Directors" on pages 5 through 9 of the Registrant's definitive
proxy statement for the Annual Meeting of Stockholders to be held on March 18,
1998, is incorporated herein by reference. Information regarding executive
officers is included as Item 4A in Part I of this document.
Item 11. Executive Compensation.
Information with respect to executive compensation, appearing under the
heading "Executive Compensation" on pages 9 through 12 of the Registrant's
definitive proxy statement for the Annual Meeting of Stockholders to be held on
March 18, 1998, is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
Information with respect to security ownership of certain beneficial owners
and management, appearing under the headings "Security Ownership of Certain
Beneficial Owners" and "Security Ownership of Management" on pages 2 through 5
of the Registrant's definitive proxy statement for the Annual Meeting of
Stockholders to be held on March 18, 1998, is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
Information with respect to certain relationships and related transactions,
appearing under the headings "Employment and Other Related Agreements" on pages
16 and 17 and "Certain Transactions" on page 17 of the Registrant's definitive
proxy statement for the Annual Meeting of Stockholders to be held on March 18,
1998, is incorporated herein by reference.
9
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a)(1) and (2) Financial Statements and Schedule
The financial statements and supplemental schedule
listed in the accompanying index to financial
statements and schedule are filed as part of this
document.
(3) Exhibits
Exhibits to this report are listed in the
accompanying index to exhibits.
(b) No reports on Form 8-K were filed during the
Company's 1997 fourth fiscal quarter.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) 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.
TEXFI INDUSTRIES, INC.
Date: February 6, 1998 By: /s/Richard L. Kramer
------------------------
Richard L. Kramer
Chairman of the Board
of Directors
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
s/Richard L. Kramer Chairman of the Board of February 6, 1998
- - ----------------------- Directors
Richard L. Kramer
s/William L. Remley Chief Executive Officer February 6, 1998
- - ----------------------- and Vice Chairman of the
William L. Remley Board of Directors
s/Andrew J. Parise, Jr. President and Chief February 6, 1998
- - ----------------------- Operating Officer
Andrew J. Parise, Jr.
s/Richard C. Hoffman Director February 6, 1998
- - -----------------------
Richard C. Hoffman
s/Joel J. Karp Director February 6, 1998
- - -----------------------
Joel J. Karp
s/Michael D. Schenker Director February 6, 1998
- - -----------------------
Michael D. Schenker
s/Dane L. Vincent Chief Financial Officer February 6, 1998
- - ----------------------- and Treasurer (Principal
Dane L. Vincent Accounting Officer)
</TABLE>
11
<PAGE>
FORM 10-K -- 14(a)(1) and (2) and ITEM 14(d)
TEXFI INDUSTRIES, INC.
INDEX TO FINANCIAL STATEMENTS AND SCHEDULE
II - Valuation and Qualifying Accounts F-1
Other schedules are omitted because of the absence of the conditions under which
they are required or because the required information is included in the
consolidated financial statements or in the notes thereto.
<PAGE>
SCHEDULE II
TEXFI INDUSTRIES, INC.
Analysis of Valuation and Qualifying Accounts for the
Fiscal Years Ended October 31, 1997,
November 1, 1996 and November 3, 1995
(Amounts in thousands)
Fiscal Year
------------------------
1997 1996 1995
---- ---- ----
RESERVES DEDUCTED FROM ASSETS
TO WHICH THEY APPLY:
Allowance for doubtful accounts and claims:
Balance at beginning of year $1,899 $1,362 $4,287
Net additions charged to income:
Doubtful accounts 199 1,342 526
Claims and allowances -- 760 2,670
------ ----- -----
199 2,102 3,196
Deductions for accounts written off as
uncollectible (net of recoveries) 1,453 1,565 6,121
------ ----- -----
Balance at end of year $ 645 $1,899 $1,362
====== ====== ======
F-1
<PAGE>
TEXFI INDUSTRIES, INC.
INDEX TO EXHIBITS
*3(a)(1) Restated Certificate of Incorporation of Registrant dated
August 13, 1969, filed as Exhibit (3)(a)(1) to Registrant's
Form 10-K Annual Report for the fiscal year ended October 31,
1980.
*3(a)(2) Certificate of Amendment of Certificate of Incorporation of
Registrant dated March 16, 1972, filed as Exhibit (3)(a)(2)to
Registrant's Form 10-K Annual Report for the fiscal year ended
October 31, 1980.
*3(a)(3) Certificate of Amendment of Certificate of Incorporation of
Registrant dated March 27, 1978, filed as Exhibit (3)(a)(3) to
Registrant's Form 10-K Annual Report for the fiscal year ended
October 31, 1980.
*3(a)(4) Certificate of Amendment of Certificate of Incorporation of
Registrant dated May 19, 1986, filed as Exhibit 4.4 to
Registrant's Form S-8 Registration Statement (No. 33-14697).
*3(a)(5) Certificate of Amendment of Certificate of Incorporation of
Registrant dated March 20, 1987, filed as Exhibit 4.5 to
Registrant's Form S-8 Registration Statement (No. 33-14697).
*3(a)(6) Certificate of Amendment of Certificate of Incorporation of
Registrant dated September 28, 1987, filed as Exhibit 4(a)(6)
to Registrant's Form S-2 Registration Statement (No.
33-16794).
*3(a)(7) Certificate of Designations of Registrant dated November 20,
1987, filed as Exhibit 4(a)(7) to Registrant's Form S-2
Registration Statement (No. 33-16794).
*3(a)(8) Certificate of Designations of Registrant dated March 8, 1988,
filed as Exhibit 4(a)(8) to Registrant's Form S-2 Registration
Statement (No. 33-20131).
*3(a)(9) Certificate of Designations of Registrant dated August 4,
1988, filed as Exhibit 4(d)(9) to Registrant's Form 10-Q
Quarterly Report for the fiscal quarter ended July 29, 1988.
*3(b)(1) Bylaws of Registrant, filed as Exhibit 4.6 to Registrant's
Form S-8 Registration Statement (No. 33-14697).
*3(b)(2) Amendment to Bylaws of Registrant, filed as Exhibit 4(b)(2) to
Registrant's Form S-2 Registration Statement (No. 33-16794).
*3(b)(3) Amendment to Bylaws of Registrant adopted by Registrant's
Board of Directors on January 18, 1991, filed as Exhibit
3(b)(3) to Registrant's Form 10-K Annual Report for the fiscal
year ended November 2, 1990.
*3(b)(4) Amendment to Bylaws of Registrant adopted by Registrant's
Board of Directors on August 31, 1994, filed as Exhibit
4(b)(4) to Registrant's Form 10-Q Quarterly Report for the
fiscal quarter ended July 29, 1994.
*3(b)(5) Amendment to Bylaws of Registrant adopted by Registrant's
Board of Directors on September 7, 1994, filed as Exhibit
4(b)(5) to Registrant's Form 10-Q Quarterly Report for the
fiscal quarter ended July 29, 1994.
*4(a)(1) Indenture between Registrant and Rhode Island Hospital Trust
National Bank, Trustee, with a copy of Subordinated Debentures
due April 1, 1995, Series A, Subordinated Debentures due April
1, 1995, Series B and Subordinated Extendible Debentures due
April 1, 2000, Series C attached, filed as Exhibit 4(f) to
Registrant's Form S-2 Registration Statement (No. 33-32485).
*4(a)(2) First Supplemental Indenture between Registrant and Rhode
Island Hospital Trust National Bank, Trustee, with a revised
Subordinated Debenture due April 1, 1995, Series B attached,
filed as Exhibit 4 to Registrant's Form 8-K Current Form dated
May 16, 1990.
<PAGE>
*4(a)(3) Indenture dated September 8, 1993 between Registrant and First
Union National Bank of North Carolina, Trustee, with copy of
8-3/4% Senior Subordinated Debenture due August 1, 1999, filed
as Exhibit 4(c)(2) to Registrant's Form 10-Q Quarterly Report
for the fiscal quarter ended July 30, 1993.
*4(a)(4) First Supplemental Indenture dated as of March 10, 1995
between Registrant and First Union National Bank of North
Carolina, as Trustee, filed as Exhibit 4(a)(1) to Registrant's
Form 8-K Current Form as of March 15, 1996.
*4(a)(5) Second Supplemental Indenture dated as of March 15, 1996
between Registrant and First Union National Bank of North
Carolina, as Trustee, filed as Exhibit 4(a)(2) to Registrant's
Form 8-K Current Form as of March 15, 1996.
*4(b)(1) Specimen Common Stock ($1 par value) certificates, filed as
Exhibit 4.01 to Amendment No. 2 to Registrant's Form S-1
Registration Statement (No. 2-41653).
*4(c)(1) Rights Agreement dated July 22, 1988 between Registrant and
First Union National Bank of North Carolina, as Rights Agent,
filed as Exhibit 1 to Registrant's Form 8-K Current Form dated
July 22, 1988.
*4(c)(2) Form of Rights Certificate, filed as Exhibit B to Exhibit 1 to
Registrant's Form 8-K Current Form dated July 22, 1988.
*4(c)(3) Amendment to Rights Agreement between Registrant and First
Union National Bank of North Carolina dated October 31, 1988,
filed as Exhibit 4(e)(3) to Registrant's Form S-2 Registration
Statement (No. 33-32485).
*4(c)(4) Second Amendment to Rights Agreement dated May 24, 1994
between Registrant and First Union National Bank of North
Carolina, as Rights Agent, filed as Exhibit 4(e)(4) to
Registrant's Form 10-Q Quarterly Report for the fiscal quarter
ended April 29, 1994.
*4(c)(5) Third Amendment to Rights Agreement dated December 16, 1994
between Registrant and First Union National Bank of North
Carolina, as Rights Agent, filed as Exhibit 4(c)(5) to
Registrant's Form 10-K Annual Report for the fiscal year ended
October 28, 1994.
*4(d)(1) Credit Agreement dated as of March 15, 1996 among Registrant,
as Borrower, certain Lenders referred to therein, NationsBank,
N.A., as Agent, and NationsBanc Commercial Corporation, as
Disbursing Agent, filed as Exhibit 2(a)(1) to Registrant's
Form 8-K Current Report dated March 15, 1996.
*4(d)(2) Security Agreement dated as of March 15, 1996 between
Registrant, as Grantor, and NationsBank, N.A., as Agent for
certain Lenders referred to therein, and NationsBanc
Commercial Corporation, as Disbursing Agent, filed as Exhibit
2(a)(2) to Registrant's Form 8-K Current Report dated March
15, 1996.
*4(d)(3) Form of Deed of Trust and Security Agreement (North Carolina
property) dated as of March 15, 1996 between Registrant, as
Grantor, TIM, Inc., as Trustee, and NationsBank, N.A., as
Beneficiary and Agent for certain Lenders referred to therein,
and NationsBanc Commercial Corporation, as Disbursing Agent,
filed as Exhibit 2(a)(3) to Registrant's Form 8-K Current
Report dated March 15, 1996.
*4(d)(4) Form of Mortgage and Security Agreement (South Carolina
property) dated as of March 15, 1996 between Registrant, as
Grantor, and NationsBank, N.A., as Beneficiary and Agent for
certain Lenders referred to therein, and NationsBanc
Commercial Corporation, as Disbursing Agent, filed as Exhibit
2(a)(4) to Registrant's Form 8-K Current Report dated March
15, 1996.
<PAGE>
*4(d)(5) Deed to Secure Debt and Security Agreement (Georgia property)
dated as of March 15, 1996 between Registrant, as Grantor, and
NationsBank, N.A., as Beneficiary and Agent for certain
Lenders referred to therein, and NationsBanc Commercial
Corporation, as Disbursing Agent, filed as Exhibit 2(a)(5) to
Registrant's Form 8-K Current Report dated March 15, 1996.
*4(d)(6) Form of Assignment of Factoring Proceeds dated March 15, 1996,
filed as Exhibit 2(a)(6) to Registrant's Form 8-K Current
Report dated March 15, 1996.
*4(d)(7) First Amendment dated May 10, 1996 to the Credit Agreement
dated March 15, 1996 among Registrant, as Borrower, certain
Lenders referred to therein, NationsBank, N.A., as Agent, and
NationsBanc Commercial Corporation, as Disbursing Agent, filed
as Exhibit 2(a)(7) to Registrant's Form 10-Q for the fiscal
quarter ended May 3, 1996.
*4(d)(8) Waiver Agreement dated June 14, 1996 to the Credit Agreement
dated March 15, 1996 among Registrant, as Borrower. certain
Lenders, referred to therein, NationsBank, N.A., as Agent, and
NationsBanc Commercial Corporation, as Disbursing Agent, filed
as Exhibit 2(a) (8) to Registrant's Form 10-Q for the fiscal
quarter ended May 3, 1996.
*4(d)(9) Second Amendment dated September 12, 1996 to the Credit
Agreement dated March 15, 1996 among Registrant, as Borrower,
certain Lenders referred to therein, NationsBank, N.A., as
Agent, and NationsBanc Commercial Corporation, as Disbursing
Agent, filed as Exhibit 2(a)(9) to Registrant's Form 10-Q for
the fiscal quarter ended August 2, 1996.
*4(d)(10) Third Amendment dated January 30, 1997 to the Credit Agreement
dated March 15, 1996 among Registrant, as Borrower, certain
Lenders referred to therein, and NationsBank, N.A., as Agent,
filed as Exhibit 4(d)(9) to Registrant's Form 10-K for the
fiscal year ended November 1, 1996.
*4(d)(11) Waiver and Consent Agreement dated June 12, 1997 to the Credit
Agreement dated March 15, 1996 among Registrant, as Borrower,
certain Lenders referred to therein, and NationsBank, N.A., as
Agent, filed as Exhibit 4(d)(11) to Registrant's Form 10-Q for
the fiscal quarter ended August 1, 1997.
*4(d)(12) Fourth Amendment dated June 19, 1997 to the Credit Agreement
dated March 15, 1996 among Registrant, as Borrower, certain
Lenders referred to therein, and NationsBank, N.A., as Agent,
filed as Exhibit 4(d)(12) to Registrant's Form 10-Q filed for
the fiscal quarter ended August 1, 1997.
4(d)(12) Fifth Amendment dated October 8, 1997 to the Credit Agreement
dated March 15, 1996 among Registrant, as Borrower, certain
Lenders referred to therein, and NationsBank, N.A., as Agent.
4(d)(13) Amended and Restated Loan and Security Agreement dated
December 19, 1997 to the Credit Agreement dated March 15, 1996
among Registrant, as Borrower, the Financial Institutions
referred to therein, and BankBoston, N.A., as Agent.
Management contract or compensatory plan or arrangement (Exhibits 10(a)(1)
through 10(a)(23))
*10(a)(1) Supplemental Retirement Agreement dated September 1, 1981
between Registrant and Joseph H. Hamilton, filed as Exhibit
10(b) to Registrant's Form 10-K Annual Report for the fiscal
year ended October 30, 1981.
*10(a)(2) Amended and Restated Nonqualified Stock Option Plan, as
adopted by Registrant's Board of Directors on January 16, 1997
and approved March 11, 1997 at a meeting of Registrant's
Stockholders, filed as Exhibit 10(a)(1) to Registrant's Form
10-Q for the fiscal quarter ended January 31, 1997.
*10(a)(3) Directors' Deferred Stock Compensation Plan as adopted by
Registrant's Board of Directors on July 14, 1989, filed as
Exhibit 19 to Registrant's Form 10-Q Quarterly Report for the
fiscal quarter ended July 28, 1989.
<PAGE>
*10(a)(4) Resolutions amending the Directors' Deferred Stock
Compensation Plan as adopted by Registrant's Board of
Directors on November 30, 1994 and Registrant's Stockholders
on March 14, 1995, filed as Exhibit 10(a)(7) to the
Registrant's Form 10-Q Quarterly Report for the fiscal quarter
ended April 28, 1995.
*10(a)(5) Resolution amending Directors' Deferred Stock Compensation
Plan, as adopted by the Directors' Deferred Stock Compensation
Committee of Registrant's Board of Directors on September 6,
1995, filed as Exhibit 10(a)(10) to Registrant's Form 10-K
Annual Report for the fiscal year ended November 3, 1995.
*10(a)(6) 1990 Executive Stock Purchase Plan, dated January 9, 1990,
filed as Exhibit 4(d)(16) to Registrant's Form 10-Q Quarterly
Report for the fiscal quarter ended February 2, 1990.
*10(a)(7) Resolutions amending the 1990 Executive Stock Purchase Plan,
as adopted by Registrant's Board of Directors on March 9,
1993, filed as Exhibit 19(g) to Registrant's Form 10-Q
Quarterly Report for the fiscal quarter ended April 30, 1993.
*10(a)(8) Resolution amending 1990 Executive Stock Purchase Plan, as
adopted by Registrant's Board of Directors on September 6,
1995, filed as Exhibit 10(a)(13) to Registrant's Form 10-K
Annual Report for the fiscal year ended November 3, 1995.
*10(a)(9) Resolution amending 1990 Executive Stock Purchase Plan, as
adopted by Registrant's Board of Directors on January 16,
1997, filed as Exhibit 10(a)(2) to Registrant's Form 10-Q
Quarterly Report for the fiscal quarter ended January 31,
1997.
*10(a)(10) Letter Agreement dated March 20, 1995 between Registrant and
L. Terrell Sovey, Jr., filed as Exhibit 10(a)(16) to
Registrant's Form 10-K Annual Report for the fiscal year ended
November 3, 1995.
*10(a)(11) Employment Agreement dated April 1, 1997 between Registrant
and Andrew J. Parise, Jr., filed as Exhibit 10 to Registrant's
Form 10-Q Quarterly Report for the quarter ended August 1,
1997.
*10(a)(12) Description of Registrant's 1994 Management Incentive
Compensation Plan adopted by Registrant's Board of Directors
on February 15, 1994, filed as Exhibit 10(a)(24) to
Registrant's Form 10-K Annual Report for the year ended
October 28, 1994 (terminated as to Messrs. Remley, Parise,
Vincent, Courtney and Gilreath in 1995).
*10(a)(13) Performance Incentive Plan adopted by Registrant's Board of
Directors on September 6, 1995, filed as Exhibit 10(a)(23) to
Registrant's Form 10-K Annual Report for the fiscal year ended
November 3, 1995.
*10(a)(14) Employment Agreement dated as of January 1, 1997 between
Registrant and Gerald A. Rubinfeld, filed as Exhibit 10(a)(22)
to Registrant's Form 10-K Annual Report for the fiscal year
ended November 1, 1996.
*10(b)(1) Master Loan and Security Agreement dated June 1, 1993 between
Registrant and BOT Financial Corporation and related
Promissory Note dated June 4, 1993 between Registrant and BOT
Financial Corporation, filed as Exhibit 19(h) to Registrant's
Form 10-Q Quarterly Report for the fiscal quarter ended April
30, 1993.
*10(b)(2) Loan Schedule No. 2 to Master Loan and Security Agreement an
related Promissory Note and Supplemental Security Agreement
dated July 30, 1993 between Registrant and BOT Financial
Corporation, filed as Exhibit 10(b)(19) to Registrant's Form
10-K Annual Report for the fiscal year ended October 29, 1993.
*10(b)(3) Loan Schedule No. 3 to Master Loan and Security Agreement and
related Promissory Note and Supplemental Security Agreement
dated October 29, 1993 between Registrant and BOT Financial
Corporation, filed as Exhibit 10(b)(20) to Registrant's Form
10-K Annual Report for the fiscal year ended October 29, 1993.
<PAGE>
*10(b)(4) Master Loan and Security Agreement dated June 1, 1993 between
Registrant and KeyCorp. Leasing Ltd. and related Promissory
Note dated June 4, 1993 between Registrant and KeyCorp.
Leasing Ltd., filed as Exhibit 19(i) to Registrant's Form 10-Q
Quarterly Report for the fiscal quarter ended April 30, 1993.
10(b)(5) Master Lease Agreement dated July 31, 1997 between Registrant
and BancBoston Leasing.
10(b)(6) Purchase Agreement dated December 15, 1997 between Registrant
and Clarendon Holdings, LLC.
10(b)(7) Bill of Sale dated December 15, 1997 between Registrant and
Clarendon Holdings, LLC.
10(b)(8) Promissory note dated December 15, 1997 between Registrant
and Clarendon Holdings, LLC.
10(b)(9) Security Agreement dated December 15, 1997 between Registrant
and Clarendon Holdings, LLC.
*10(c)(1) Stock and Option Purchase Agreement dated May 24, 1994 between
Registrant and Chadborne Corporation, filed as Exhibit
10(d)(1) to Registrant's Form 10-Q Quarterly Report for the
fiscal quarter ended April 29, 1994.
11 Computation of Earnings Per Share
21 Subsidiary of Registrant
23 Consent of Ernst & Young LLP, Independent Auditors
27 Financial Data Schedule
- - ----------------------------------
*Incorporated by reference to previous filing.
<PAGE>
<PAGE>
FIFTH AMENDMENT
THIS FIFTH AMENDMENT (the "Amendment") to the Credit Agreement referred
to below is entered into as of the 8th day of October, 1997, by and among TEXFI
INDUSTRIES, INC., a corporation organized under the laws of Delaware (the
"Borrower"), THE LENDERS signatory hereto (collectively, the "Lenders"), and
NATIONSBANK, N.A., a national banking association, as Agent (the "Agent").
STATEMENT OF PURPOSE
The Borrower, the Lenders and the Agent are parties to a certain Credit
Agreement dated as of March 15, 1996 (as heretofore amended and as further
amended or modified hereby, the "Credit Agreement"), pursuant to which the
Lenders have agreed to make, and have made, certain Loans to the Borrower. The
Borrower, the Lenders and the Agent have agreed to amend the Credit Agreement
upon the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
I. Amendments and Waivers.
1. Sale of Assets; Application of Proceeds. The Credit Agreement is
hereby amended to provide that:
(a) The Net Proceeds of any sale of the plant, property or
equipment at the Borrower's Kingstree Knits facility or Graham, North
Carolina elastics facility shall be applied against the outstanding
principal amount of the Revolving Credit Loans.
(b) The Net Proceeds realized from the sale of the assets of
the Narrow Fabrics division of the Borrower shall be applied as
follows:
(i) $2,800,000 shall be applied to the payment of the
Borrower's 11-1/4% Convertible Senior Subordinated Debentures
due October 1, 1997;
(ii) $2,100,000 shall be applied against the
principal installments due on the Term Loan in the inverse
order of their maturity; and
(iii) The balance shall be applied against the
outstanding principal amount of the Revolving Credit Loans.
(c) On or before October 31, 1997, the Borrower shall prepay
the Term Loan by an additional $600,000, such prepayment to be in
addition to the scheduled payment of $500,000 due on October 31, 1997,
and to be applied against the installments due on the Term Loan in the
inverse order of their maturity. The breach
<PAGE>
of this covenant shall constitute a default in the payment of principal
due on the Term Loan.
(d) The balance due on the Term Loan, after giving effect to
the prepayments provided for above, shall be repaid in ten (10)
consecutive, equal monthly installments, plus accrued interest,
commencing on November 30, 1997 and continuing on the last day of each
month thereafter through August 31, 1998, on which date the Term Loan,
together with all accrued and unpaid interest thereon, shall be due and
payable in full.
(e) Not later than October 31, 1997, (i) the Borrower shall
have consummated the sale of Rival Sport, L.L.C. ("Rival") to Mentmore
Holdings, Inc. or one of its affiliates (the "Purchaser") for a price
equal to the Borrower's net investment in Rival as of the date of such
sale. The consideration received by the Borrower will consist of a cash
payment of at least $500,000 and the assumption by the Purchaser of the
debt and other liabilities of Rival; and (ii) the Letters of Credit
issued by the Issuing Lender for the benefit of Rival which are
outstanding at the date of sale shall have been terminated and all
liabilities and obligations to the Issuing Lender thereunder shall have
been satisfied in full.
2. Section 9.1 of the Credit Agreement. Section 9.1 of the Credit
Agreement is hereby amended to provide that the ratio of (a) Consolidated
Current Assets of the Borrower and its Subsidiaries to (b) Consolidated Current
Liabilities of the Borrower and its Subsidiaries shall not be less than 1.85 to
1.0 at the end of the fourth quarter of Fiscal Year 1997 and not less than 2.0
to 1.0 at any time thereafter.
3. Section 9.4 of the Credit Agreement. Section 9.4 of the Credit
Agreement is deleted in its entirety and the following substituted in lieu
thereof:
Section 9.4 Minimum Net Worth. Permit Consolidated
Net Worth to be less than negative $12,850,000 as of the end
of the fourth quarter of the Borrower's 1997 fiscal year and
as of any date thereafter, an amount equal to the sum of (x)
negative $12,850,000 plus (y) fifty percent (50%) of
Consolidated Net Income (if positive) of the Borrower and its
Subsidiaries for each fiscal quarter occurring after the end
of the Borrower's 1997 fiscal year plus (z) one hundred
percent (100%) of the aggregate Net Proceeds of any issuance
or offering of capital stock received by the Borrower or any
of its Subsidiaries after the end of the Borrower's 1997
fiscal year.
4. Waiver. The Agent and the Lenders hereby waive any Event of Default
which exists as of the date of this Amendment resulting from the failure by the
Borrower to comply with Section 9.1 (Current Ratio) or Section 9.4 (Minimum Net
Worth) of the Credit Agreement.
-2-
<PAGE>
II. Confirmation; Conditions to Effectiveness.
1. Representations and Warranties. To induce the Lenders and the Agent
to execute this Amendment, the Borrower hereby confirms that each representation
and warranty made by it under the Loan Documents is true and correct as of the
date hereof and that after giving effect to this Amendment and the application
of the Net Proceeds as provided in Section I above, no Default or Event of
Default exists under the Credit Agreement. The Borrower hereby represents and
warrants that as of the date hereof there are no claims or offsets against or
defenses or counterclaims to its obligations under the Credit Agreement or any
other Loan Document.
2. Conditions to Effectiveness. This Amendment shall become effective
upon completion of the following conditions to the satisfaction of the Agent:
(a) this Amendment shall have been duly authorized, executed
and delivered by the Borrower and shall be in full force and effect;
(b) receipt by the Agent of a commitment fee in an amount
equal to $150,000, such fee to be shared by the Lenders pro rata in
accordance with the Commitment Percentage of each Lender; and
(c) receipt by the Agent of any other document or instrument
reasonably requested by it in connection with the execution of this
Amendment.
III. General Provisions.
1. Limited Amendment. This Amendment shall not be deemed (i) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or (ii) to prejudice any other right or rights
which the Agent or any Lender may now have or may have in the future under or in
connection with the Credit Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended or
modified from time to time.
2. Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3. Definitions. All capitalized terms used and not defined herein shall
have the meanings given thereto in the Credit Agreement.
4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
BORROWER:
TEXFI INDUSTRIES, INC.
By: /s/ Dane L. Vincent
Name: Dane L. Vincent
Title: VP, CEO & Treasurer
AGENT:
NATIONSBANK, N.A.
By: /s/ David H. Dinkins
Name: David H. Dinkins
Title: Vice President
LENDERS:
NATIONSBANK, N.A.
By: /s/ David H. Dinkins
Name: David H. Dinkins
Title: Vice President
-4-
<PAGE>
BANKBOSTON, N.A.
By: /s/ Pamela D. Petrick
Name: Pamela D. Petrick
Title: Vice President
CORESTATES BANK, N.A.
By: /s/ John P. Brady
Name: John P. Brady
Title: Vice President
NATIONAL BANK OF CANADA
By: /s/ Charles Collie
Name: Charles Collie
Title: VP & Mgr.
By: /s/ Dan Shaw
Name: Dan Shaw
Title: A.V.P.
-5-
<PAGE>
THE CIT GROUP/
COMMERCIAL SERVICES, INC.
By: /s/ P.B. Cooney
Name: Peter B. Cooney
Title: V.P.
-6-
<PAGE>
<PAGE>
[EXECUTION COPY]
$55,000,000
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of December 19, 1997
Between
TEXFI INDUSTRIES, INC.
(the Borrower)
and
THE FINANCIAL INSTITUTIONS PARTY
HERETO FROM TIME TO TIME
(the Lenders)
and
BANKBOSTON, N.A.
(the Agent)
<PAGE>
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1 - DEFINITIONS
SECTION 1.1. Definitions......................................................................................1
SECTION 1.2. General.........................................................................................29
SECTION 1.3 Exhibits and Schedules...........................................................................31
ARTICLE 2 - REVOLVING CREDIT FACILITY
SECTION 2.1. Revolving Credit Loans..........................................................................32
SECTION 2.2. Manner of Borrowing Revolving Credit Loans......................................................32
SECTION 2.3. Repayment of Revolving Credit Loans.............................................................34
SECTION 2.4. Revolving Credit Note...........................................................................34
SECTION 2.5. Extension of Revolving Credit Facility..........................................................34
ARTICLE 3 - LETTER OF CREDIT FACILITY
SECTION 3.1. Agreement to Issue..............................................................................35
SECTION 3.2. Amounts.........................................................................................35
SECTION 3.3. Conditions......................................................................................35
SECTION 3.4. Issuance of Letters of Credit...................................................................35
SECTION 3.5. Duties of BankBoston............................................................................36
SECTION 3.6. Payment of Reimbursement Obligations............................................................36
SECTION 3.7. Participations..................................................................................37
SECTION 3.8. Indemnification, Exoneration....................................................................38
SECTION 3.9. Supporting Letter of Credit; Cash Collateral....................................................39
ARTICLE 4 - TERM LOAN FACILITY
SECTION 4.1. Term Loans......................................................................................41
SECTION 4.2. Manner of Borrowing Term Loans..................................................................41
SECTION 4.3. Repayment of Term Loans.........................................................................41
SECTION 4.4. Term Notes......................................................................................41
ARTICLE 5 - GENERAL LOAN PROVISIONS
SECTION 5.1. Interest........................................................................................42
SECTION 5.2. Certain Fees....................................................................................43
SECTION 5.3. Manner of Payment...............................................................................44
- - --------
(1) This Table of Contents is included for reference purposes only and does not
constitute part of the Loan and Security Agreement.
<PAGE>
Page
SECTION 5.4. General.........................................................................................44
SECTION 5.5. Loan Accounts; Statements of Account............................................................44
SECTION 5.6. Termination of Agreement........................................................................45
SECTION 5.7. Making of Loans.................................................................................45
SECTION 5.8. Settlement Among Lenders........................................................................46
SECTION 5.9. Mandatory Prepayments...........................................................................48
SECTION 5.10. Optional Prepayments...........................................................................48
SECTION 5.11. Prepayment Fee.................................................................................49
SECTION 5.12. Payments Not at End of Interest Period; Failure to Borrow .....................................49
SECTION 5.13. Assumptions Concerning Funding of Eurodollar Rate Loans .......................................50
SECTION 5.14. Notice of Conversion or Continuation...........................................................50
SECTION 5.15. Conversion or Continuation.....................................................................51
SECTION 5.16. Duration of Interest Periods; Maximum Number of Eurodollar Rate
Loans; Minimum Increments ....................................................................51
SECTION 5.17. Changed Circumstances..........................................................................51
ARTICLE 6 - CONDITIONS PRECEDENT
SECTION 6.1. Conditions Precedent to Revolving Credit Loans and Term Loans ..................................53
SECTION 6.2. All Loans; Letters of Credit....................................................................55
SECTION 6.3. Effect of Effectiveness.........................................................................56
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 7.1. Representations and Warranties..................................................................57
SECTION 7.2. Survival of Representations and Warranties, Etc.................................................66
ARTICLE 8 - SECURITY INTEREST
SECTION 8.1. Security Interest...............................................................................67
SECTION 8.2. Continued Priority of Security Interest.........................................................67
ARTICLE 9 - COLLATERAL COVENANTS
SECTION 9.1. Collection of Receivables.......................................................................69
SECTION 9.2. Verification and Notification...................................................................69
SECTION 9.3. Disputes, Returns and Adjustments...............................................................70
SECTION 9.4. Invoices........................................................................................70
SECTION 9.5. Delivery of Instruments.........................................................................70
SECTION 9.6. Sales of Inventory..............................................................................71
SECTION 9.7. Ownership and Defense of Title..................................................................71
SECTION 9.8. Insurance.......................................................................................71
SECTION 9.9. Location of Offices and Collateral..............................................................72
SECTION 9.10. Records Relating to Collateral.................................................................72
SECTION 9.11. Inspection.....................................................................................72
SECTION 9.12. Information and Reports........................................................................73
ii
<PAGE>
Page
SECTION 9.13. Power of Attorney..............................................................................74
SECTION 9.14. Additional Real Estate and Leases..............................................................74
SECTION 9.15. Assignment of Claims Act.......................................................................74
ARTICLE 10 - AFFIRMATIVE COVENANTS
SECTION 10.1. Preservation of Corporate Existence and Similar Matters........................................75
SECTION 10.2. Compliance with Applicable Law.................................................................75
SECTION 10.3. Maintenance of Property........................................................................75
SECTION 10.4. Conduct of Business............................................................................75
SECTION 10.5. Insurance......................................................................................75
SECTION 10.6. Payment of Taxes and Claims....................................................................75
SECTION 10.7. Accounting Methods and Financial Records.......................................................76
SECTION 10.8. Use of Proceeds................................................................................76
SECTION 10.9. Hazardous Waste and Substances; Environmental Requirements.....................................76
SECTION 10.10. Minimum Revolver Availability.................................................................77
ARTICLE 11 - INFORMATION
SECTION 11.1. Financial Statements...........................................................................78
SECTION 11.2. Accountants' Certificate.......................................................................78
SECTION 11.3. Officer's Certificate..........................................................................79
SECTION 11.4. Copies of Other Reports........................................................................79
SECTION 11.5. Notice of Litigation and Other Matters.........................................................80
SECTION 11.6. ERISA..........................................................................................80
SECTION 11.7. Revisions or Updates to Schedules..............................................................80
SECTION 11.8. Subordinated Debt Certificate..................................................................81
ARTICLE 12 - NEGATIVE COVENANTS
SECTION 12.1. Financial Ratios...............................................................................82
SECTION 12.2. Debt...........................................................................................83
SECTION 12.3. Guaranties.....................................................................................83
SECTION 12.4. Investments....................................................................................83
SECTION 12.5. Capital Expenditures...........................................................................83
SECTION 12.6.Restricted Payments and Purchases, Etc..........................................................83
SECTION 12.7. Merger, Consolidation and Sale of Assets......................................................83
SECTION 12.8. Transactions with Affiliates...................................................................83
SECTION 12.9. Liens..........................................................................................84
SECTION 12.10. Capitalized Lease Obligations.................................................................84
SECTION 12.11. Operating Leases..............................................................................84
SECTION 12.12. Real Estate Leases............................................................................84
SECTION 12.13. Plans.........................................................................................84
SECTION 12.14. Sales and Leasebacks..........................................................................84
iii
<PAGE>
Page
ARTICLE 13 - DEFAULT
SECTION 13.1. Events of Default..............................................................................85
SECTION 13.2. Remedies.......................................................................................87
SECTION 13.3. Application of Proceeds........................................................................89
SECTION 13.4. Power of Attorney..............................................................................90
SECTION 13.5. Miscellaneous Provisions Concerning Remedies...................................................91
ARTICLE 14 - ASSIGNMENTS
SECTION 14.1. Successors and Assigns; Participations.........................................................92
SECTION 14.2. Representation of Lenders......................................................................94
ARTICLE 15 - AGENT
SECTION 15.1. Appointment of Agent...........................................................................95
SECTION 15.2. Delegation of Duties...........................................................................95
SECTION 15.3. Exculpatory Provisions.........................................................................95
SECTION 15.4. Reliance by Agent..............................................................................95
SECTION 15.5. Notice of Default..............................................................................96
SECTION 15.6. Non-Reliance on Agent and Other Lenders........................................................96
SECTION 15.7. Indemnification................................................................................96
SECTION 15.8. Agent in Its Individual Capacity...............................................................97
SECTION 15.9. Successor Agent................................................................................97
SECTION 15.10. Notices from Agent to Lenders.................................................................97
ARTICLE 16 - MISCELLANEOUS
SECTION 16.1. Notices........................................................................................98
SECTION 16.2. Expenses.......................................................................................99
SECTION 16.3. Stamp and Other Taxes.........................................................................100
SECTION 16.4. Setoff........................................................................................100
SECTION 16.5. Litigation....................................................................................100
SECTION 16.6. Waiver of Rights..............................................................................101
SECTION 16.7. Consent to Advertising and Publicity..........................................................101
SECTION 16.8. Reversal of Payments..........................................................................102
SECTION 16.9. Injunctive Relief.............................................................................102
SECTION 16.10. Accounting Matters...........................................................................102
SECTION 16.11. Amendments...................................................................................102
SECTION 16.12. Assignment...................................................................................104
SECTION 16.13. Performance of Borrower's Duties.............................................................104
SECTION 16.14. Indemnification..............................................................................104
SECTION 16.15. All Powers Coupled with Interest.............................................................104
SECTION 16.16. Survival.....................................................................................104
SECTION 16.17. Titles and Captions..........................................................................105
iv
<PAGE>
Page
SECTION 16.18. Severability of Provisions...................................................................105
SECTION 16.19. Governing Law................................................................................105
SECTION 16.20. Counterparts.................................................................................105
SECTION 16.21. Reproduction of Documents....................................................................105
SECTION 16.22. Term of Agreement............................................................................106
SECTION 16.23. Increased Capital............................................................................106
SECTION 16.24. Pro-Rata Participation.......................................................................106
</TABLE>
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ANNEX A COMMITMENTS
EXHIBIT A FORM OF REVOLVING CREDIT NOTE
EXHIBIT B FORM OF TERM NOTE
EXHIBIT C FORM OF BORROWING BASE CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL FOR BORROWER
EXHIBIT E FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT F FORM OF SETTLEMENT REPORT
Schedule 1.1A [RESERVED]
Schedule 1.1B Permitted Investments
Schedule 1.1C Permitted Liens
Schedule 7.1(a) Organization
Schedule 7.1(b) Capitalization
Schedule 7.1(d) Subsidiaries; Ownership of Stock
Schedule 7.1(f) Compliance with Laws
Schedule 7.1(h) Governmental Approvals
Schedule 7.1(i) Title to Properties
Schedule 7.1(j) Liens
Schedule 7.1(k) Debt and Guaranties
Schedule 7.1(l) Litigation
Schedule 7.1(m) Tax Matters
Schedule 7.1(p) Material Adverse Change
Schedule 7.1(q) ERISA
Schedule 7.1(u) Location of Offices and Receivables
Schedule 7.1(v) Location of Inventory
Schedule 7.1(w) Equipment
Schedule 7.1(x) Real Estate
Schedule 7.1(y) Corporate and Fictitious Names
Schedule 7.1(bb) Employee Relations
Schedule 7.1(cc) Proprietary Rights
Schedule 7.1(dd) Trade Names
Schedule 10.8 Use of Proceeds
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of December 19, 1997
TEXFI INDUSTRIES, INC., a Delaware corporation (the "Borrower"), the
financial institutions party to this Agreement from time to time (the "Lenders")
and BANKBOSTON, N.A., a national banking association, as agent for the Lenders
(the "Agent"), agree as follows:
Preliminary Statement
The Borrower, the Lenders and the Agent are parties to a Credit
Agreement dated as of March 15, 1996 (as amended and in effect on the date
hereof, the "Existing Credit Agreement") and the related Loan Documents (as
defined in the Existing Credit Agreement), including a Security Agreement dated
as of March 15, 1996. The Borrower has requested an extension of the final
maturity date under the Existing Credit Agreement and certain other
modifications to the provisions thereof and of the related Loan Documents and
the Lenders and the Agent have agreed to such requests, upon and subject to all
of the terms, conditions and provisions hereinafter set forth.
For the convenience of the parties, and without any intention of
extinguishing the indebtedness outstanding thereunder and under the Loan
Documents, the parties hereto desire to reflect the modifications they have
agreed to by amending and restating the Existing Credit Agreement in its
entirety.
Accordingly, in consideration of the Existing Credit Agreement, and the
mutual promises hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. For the purposes of this Agreement:
"Account Debtor" means a Person who is obligated on a Receivable.
"Acquire" or "Acquisition", as applied to any Business Unit or
Investment, means the acquiring or acquisition of such Business Unit or
Investment by purchase, exchange, issuance of stock or other securities, or by
merger, reorganization or any other method.
"Affiliate" means, with respect to a Person, (a) any partner, officer,
shareholder (if holding more than ten percent (10%) of the outstanding shares of
capital stock of such Person), director, employee or managing agent of such
Person, (b) any spouse, parents, siblings, children or grandchildren of such
Person, and (c) any other Person (other than a Subsidiary) that, (i) directly or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such given Person, (ii) directly or indirectly
beneficially owns or holds ten percent (10%) or more of any class of voting
stock or partnership or other voting interest of such Person or any Subsidiary
of such Person, or (iii) ten percent (10%) or more of the voting stock or
partnership or other voting interest of which is directly or indirectly
beneficially owned or held by such Person or a Subsidiary of such Person. The
term "control" means the possession, directly or indirectly, of the
<PAGE>
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities or partnership or other
voting interest, by contract or otherwise.
"Agency Account" means an account of the Borrower maintained by it with
a Clearing Bank pursuant to an Agency Account Agreement.
"Agency Account Agreement" means an agreement among the Borrower, the
Agent and a Clearing Bank, in form and substance satisfactory to the Agent,
concerning the collection of payments which represent the proceeds of
Receivables or of any other Collateral.
"Agent" means BankBoston, N.A., a national banking association, and any
successor agent appointed pursuant to SECTION 15.9 hereof.
"Agent's Office" means the office of the Agent specified in or
determined in accordance with the provisions of SECTION 16.1.
"Agreement" means and includes this Agreement, including all Schedules,
Exhibits and other attachments hereto, and all amendments, modifications and
supplements hereto and thereto.
"Agreement Date" means the date as of which this Agreement is dated.
"Alternate Base Rate" means a floating rate of interest equal to the
higher of (a) the Base Rate, and (b) the Federal Funds Effective Rate PLUS 1/2
of 1% per annum (rounded up if necessary, to the next higher 1/8th of 1%).
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and of all
orders and decrees of all courts and arbitrators, including, without limitation,
Environmental Laws.
"Applicable Margin" means (a) as to Base Rate Revolving Credit Loans,
1% and Base Rate Term Loans, 1.25% and (b) as to Eurodollar Rate Revolving
Credit Loans, 2.5% and Eurodollar Rate Term Loans, 2.75% and (c) at any time
when the election provided for in SECTION 5.1(C) has been made, as to all Loans,
the Default Margin.
"Asset Disposition" means the disposition of any asset of the Borrower
or any of its Subsidiaries, other than sales of Inventory in the ordinary course
of business.
"Assignment and Acceptance" means an assignment and acceptance in the
form attached hereto as EXHIBIT E assigning all or a portion of a Lender's
interests, rights and obligations under this Agreement pursuant to SECTION 14.1.
"Availability" means at any time (a) the Borrowing Base at such time
MINUS (b) the sum of the aggregate principal amount of Revolving Credit Loans
outstanding at such time.
"BankBoston" means BankBoston, N.A. (formerly The First National Bank of
Boston), a national banking association, in its individual capacity and not as
the Agent hereunder.
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"Base Rate" means on any day the interest rate per annum equal to the
rate of interest publicly announced from time to time by BankBoston at its head
office at 100 Federal Street, Boston, Massachusetts as its "base" rate as in
effect at such time.
"Base Rate Loan" means a Base Rate Revolving Credit Loan or Base Rate
Term Loan, or all such Loans, as the context may require.
"Base Rate Revolving Credit Loan" means a Revolving Credit Loan bearing
interest at a rate determined with reference to the Alternate Base Rate.
"Base Rate Term Loan" means a Term Loan bearing interest at a rate
determined with reference to the Alternate Base Rate.
"Benefit Plan" means an "employee pension benefit plan" as defined in
Section 3(3) of ERISA (other than a Multiemployer Plan) in respect of which the
Borrower or, solely with respect to any employee benefit plan subject to Title
IV of ERISA, any Related Company is, or within the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA, including such
plans as may be established after the Agreement Date.
"Borrower" means Texfi Industries, Inc., a Delaware corporation.
"Borrowing" means the aggregate Revolving Credit Loans made by the
Lenders on the same day, bearing interest at the same rate, and if Eurodollar
Rate Loans, for the same Interest Period.
"Borrowing Base" means at any time an amount equal to the lesser of:
(a) the Revolving Credit Facility MINUS the sum of
(i) the Letter of Credit Reserve, PLUS
(ii) such other reserves as the Agent in its reasonable credit
judgment may establish from time to time, and
(b) an amount equal to
(i) 90% (or such lesser percentage as the Agent may in its
reasonable credit judgment determine from time to time) of the face
value of Eligible Factored Receivables due and owing at such time, PLUS
(ii) 85% (or such lesser percentage as the Agent may in its
reasonable credit judgment determine from time to time) of the face
value of House Receivables due and owing at such time, PLUS
(ii) THE LESSER OF
(A) $12,000,000, AND
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(B) 50% (or such lesser percentage as the Agent may in its
reasonable credit judgment determine from time to time) of the
lesser of cost determined on a FIFO (or first-in-first-out)
accounting basis and fair market value of Eligible Inventory,
MINUS
(iii) the sum of
(A) the Letter of Credit Reserve, PLUS
(B) such other reserves as the Agent in its
reasonable credit judgment may establish from time to time.
"Borrowing Base Certificate" means a certificate in the form attached
hereto as EXHIBIT C or in such other form as may be acceptable to the Agent.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks in Atlanta, Georgia are authorized to close and, when used with
respect to Eurodollar Rate Loans, means any such day on which dealings are also
carried on in the applicable interbank Eurodollar market.
"Business Unit" means the assets constituting the business or a
division or operating unit thereof of any Person.
"CIT Ledger Debt" means all amounts owing, whether now or in the
future, by the Borrower to CIT on account of the Borrower's purchases of goods
or services from any Person for whom CIT acts as factor.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets (other
than assets which constitute a Business Unit) which are not, in accordance with
GAAP, treated as expense items for such Person in the year made or incurred or
as a prepaid expense applicable to a future year or years.
"Capitalized Lease" means a lease that is required to be capitalized
for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a Capitalized Lease, and the amount of such Indebtedness shall
be the capitalized amount of such obligations determined in accordance with
GAAP.
"Cash Collateral" means collateral consisting of cash or Cash
Equivalents on which the Agent, for the benefit of itself as Agent and the
Lenders, has a first priority Lien.
"Cash Equivalents" means
(a) marketable direct obligations issued or unconditionally guaranteed
by the United States Government or issued by any agency thereof and backed by
the full faith and credit of the United States, in each case maturing within one
year from the date of acquisition thereof;
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<PAGE>
(b) commercial paper maturing no more than one year from the date
issued and, at the time of acquisition thereof, having a rating of at least A-1
from Standard & Poor's Ratings Service or at least P-1 from Moody's Investors
Service, Inc.;
(c) certificates of deposit or bankers' acceptances issued in Dollar
denominations and maturing within one year from the date of issuance thereof
issued by any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having combined capital
and surplus of not less than $250,000,000 and, unless issued by the Agent or a
Lender, not subject to set-off or offset rights in favor of such bank arising
from any banking relationship with such bank; and
(d) repurchase agreements in form and substance and for amounts
satisfactory to the Agent.
"Clearing Bank" means Wachovia Bank, N.A. and any other banking
institution with which an Agency Account has been established pursuant to an
Agency Account Agreement.
"Collateral" means and includes all of the Borrower's right, title and
interest in and to each of the following, wherever located and whether now or
hereafter existing or now owned or hereafter acquired or arising:
(a) (i) all rights to the payment of money or other forms of
consideration of any kind (whether classified under the UCC as accounts,
contract rights, chattel paper, general intangibles or otherwise) including, but
not limited to, accounts receivable, letters of credit and the right to receive
payment thereunder, chattel paper, tax refunds, insurance proceeds, any rights
under contracts not yet earned by performance and not evidenced by an instrument
or chattel paper, notes, drafts, instruments, documents, acceptances and all
other debts, obligations and liabilities in whatever form from any Person, (ii)
all guaranties, security and Liens securing payment thereof, (iii) all goods,
whether now owned or hereafter acquired, and whether sold, delivered,
undelivered, in transit or returned, which may be represented by, or the sale or
lease of which may have given rise to, any such right to payment or other debt,
obligation or liability, and (iv) all proceeds of any of the foregoing (the
foregoing, collectively, "Receivables"),
(b) (i) all inventory, (ii) all goods intended for sale or lease or for
display or demonstration, (iii) all work in process, (iv) all raw materials and
other materials and supplies of every nature and description used or which might
be used in connection with the manufacture, packing, shipping, advertising,
selling, leasing or furnishing of goods or services or otherwise used or
consumed in the conduct of business, and (v) all documents evidencing and
general intangibles relating to any of the foregoing (the foregoing,
collectively, "Inventory"),
(c) (i) all machinery, apparatus, equipment, motor vehicles, tractors,
trailers, rolling stock, fittings, fixtures and other tangible personal property
(other than Inventory) of every kind and description, (ii) all tangible personal
property (other than Inventory) and fixtures used in the Borrower's business
operations or owned by the Borrower or in which the Borrower has an interest,
and (iii) all parts, accessories and special tools and all increases and
accessions thereto and substitutions and replacements therefor (the foregoing,
collectively, "Equipment"),
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<PAGE>
(d) all general intangibles, choses in action and causes of action and
all other intangible personal property of every kind and nature (other than
Receivables), including, without limitation, Proprietary Rights, corporate or
other business records, inventions, designs, blueprints, plans, specifications,
trade secrets, goodwill, computer software, customer lists, registrations,
licenses, franchises, tax refund claims, reversions or any rights thereto and
any other amounts payable to such Person from any Benefit Plan, Multiemployer
Plan or other employee benefit plan, rights and claims against carriers and
shippers, rights to indemnification, business interruption insurance and
proceeds thereof, property, casualty or any similar type of insurance and any
proceeds thereof, the beneficiary's interest in proceeds of insurance covering
the lives of key employees and any letter of credit, guarantee, claims, security
interest or other security for the payment by an Account Debtor of any of the
Receivables (the foregoing, collectively, "General Intangibles"),
(e) any demand, time, savings, passbook, money market or like
depository account, and all certificates of deposit, maintained with a bank,
savings and loan association, credit union or like organization, other than an
account evidenced by a certificate of deposit that is an instrument under the
UCC (the foregoing, collectively, "Deposit Accounts"),
(f) all certificated and uncertificated securities, all security
entitlements, all securities accounts, all commodity contracts and all commodity
accounts (the foregoing, collectively, "Investment Property"),
(g) (i) any investment account maintained by or on behalf of the
Borrower with the Agent or any Lender or any Affiliate of the Agent or any
Lender, (ii) any agreement governing such account, (iii) all cash, money, notes,
securities, instruments, goods, accounts, documents, chattel paper, general
intangibles and other property now or hereafter held by the Agent or any Lender
or any Affiliate of the Agent or any Lender on behalf of the Borrower in
connection with such investment account or deposited by the Borrower or on the
Borrower's behalf to such investment account or otherwise credited thereto for
the Borrower's benefit, or distributable to the Borrower from such investment
account, together with all contracts for the sale or purchase of the foregoing,
(iv) all of the Borrower's right, title and interest with respect to the
deposit, investment, allocation, disposition, distribution or withdrawal of the
foregoing, (v) all of the Borrower's right, title and interest with respect to
the making of amendments, modifications or additions of or to the terms and
conditions under which the investment account or investments maintained therein
is to be maintained by the Borrower, any Lender or any Affiliate of the Agent or
any Lender on the Borrower's behalf, and (vi) all of the Borrower's books,
records and receipts pertaining to or confirming any of the foregoing (the
foregoing, collectively, "Investment Accounts"),
(h) all cash or other property deposited with the Agent or any Lender
or any Affiliate of the Agent or any Lender or which the Agent, for its benefit
and for the benefit of the Lenders, or any Lender or such Affiliate is entitled
to retain or otherwise possess as collateral pursuant to the provisions of this
Agreement or any of the Loan Documents or any agreement relating to any Letter
of Credit, including, without limitation, amounts on deposit in the Cash
Collateral Account,
(i) all goods and other property, whether or not delivered,
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(i) the sale or lease of which gives or purports to give rise to any
Receivable, including, but not limited to, all merchandise returned or
rejected by or repossessed from customers, or
(ii) securing any Receivable,
including, without limitation, all rights as an unpaid vendor or lienor
(including, without limitation, stoppage in transit, replevin and reclamation)
with respect to such goods and other property,
(j) all mortgages, deeds to secure debt and deeds of trust on real or
personal property, guaranties, leases, security agreements, and other agreements
and property which secure or relate to any Receivable or other Collateral, or
are acquired for the purpose of securing and enforcing any item thereof,
(k) all documents of title, including bills of lading and warehouse
receipts, policies and certificates of insurance, securities, chattel paper and
other documents and instruments evidencing or pertaining to any and all items of
Collateral,
(l) all files, correspondence, computer programs, tapes, discs and
related data processing software which contain information identifying or
pertaining to any of the Receivables or any Account Debtor, or showing the
amounts thereof or payments thereon or otherwise necessary or helpful in the
realization thereon or the collection thereof,
(m) all cash deposited with the Agent or any Lender or any Affiliate of
the Agent or any Lender or which the Agent, for the benefit of the Lenders, or
any Lender or such Affiliate is entitled to retain or otherwise possess as
collateral pursuant to the provisions of this Agreement or any of the Security
Documents or any agreement relating to any Letters of Credit,
(n) to the extent not included in the foregoing, all "Collateral" as
defined in the Existing Credit Agreements,
(o) any and all products and proceeds of the foregoing (including, but
not limited to, any claim to any item referred to in this definition, and any
claim against any third party for loss of, damage to or destruction of any or
all of, the Collateral or for proceeds payable under, or unearned premiums with
respect to, policies of insurance) in whatever form, including, but not limited
to, cash, negotiable instruments and other instruments for the payment of money,
chattel paper, security agreements and other documents.
"Commitment" means, as to each Lender, the amount set forth opposite
such Lender's name on ANNEX A hereto, representing such Lender's obligation,
upon and subject to the terms and conditions of this Agreement (including the
applicable provisions of SECTION 14.1), to make Revolving Credit Loans and Term
Loans and to purchase participations in Letters of Credit or, from and after the
date hereof, in the Register (as defined in SECTION 14.1) representing such
Lender's obligation to make Revolving Credit Loans and to purchase
participations in Letters of Credit and its corresponding interest in Term Loans
outstanding.
"Commitment Percentage" means, as to any Lender, the result (expressed
as a percentage) obtained by dividing such Lender's Commitment by the aggregate
Commitments.
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"Consolidated Subsidiaries" means, as to the Borrower, the Subsidiaries
of the Borrower whose accounts are at the time in question, in accordance with
GAAP and pursuant to the written consent of the Required Lenders, which consent
may be withheld in their absolute discretion conditioned upon, INTER ALIA, the
execution and delivery of guaranties, security agreements, mortgages and other
documents required by the Required Lenders in their absolute discretion,
consolidated with those of the Borrower.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, or any constituent of any such substance or waste.
"Contract Rights" means any rights under contracts not yet earned by
performance and not evidenced by an instrument or chattel paper.
"Controlled Disbursement Account" means one or more accounts maintained
by and in the name of the Borrower with a Disbursing Bank for the purposes of
disbursing Revolving Credit Loan proceeds and amounts deposited thereto.
"Copyrights" means and includes, in each case whether now existing or
hereafter arising, all of the Borrower's right, title and interest in and to
(a) all copyrights, rights and interests in copyrights, works
protectable by copyright, copyright registrations and copyright applications;
(b) all renewals of any of the foregoing;
(c) all income, royalties, damages and payments now or hereafter due
and/or payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements of any of the foregoing;
(d) the right to sue for past, present and future infringements of any
of the foregoing; and
(e) all rights corresponding to any of the foregoing throughout the
world.
"Credit Risk" means the risk of loss resulting solely and exclusively
from an account debtor's failure to pay an Eligible Receivable at maturity
because of its financial inability.
"Current Assets" means, with respect to any Person, the aggregate
amount of assets of such Person which should properly be classified as current
assets in accordance with GAAP, after deducting adequate reserves in each case
where a reserve is appropriate in accordance with GAAP.
"Current Liabilities" means, with respect to any Person, the aggregate
amount of all Liabilities of such Person which should properly be classified as
current liabilities in accordance with GAAP.
"Debt" means,
(a) Indebtedness for money borrowed,
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(b) Indebtedness, whether or not in any such case the same was for
money borrowed,
(i) represented by notes payable, and drafts accepted, that
represent extensions of credit,
(ii) constituting obligations evidenced by bonds, debentures,
notes or similar instruments, or
(iii) upon which interest charges are customarily paid or that
was issued or assumed as full or partial payment for property (other
than trade credit that is incurred in the ordinary course of business),
(c) Indebtedness that constitutes a Capitalized Lease Obligation, and
(d) Indebtedness that is such by virtue of CLAUSE (C) of the definition
thereof, but only to the extent that the obligations Guaranteed are obligations
that would constitute Debt.
"Default" means any of the events specified in SECTION 13.1 which with
the passage of time or giving of notice or both would constitute an Event of
Default.
"Default Margin" means 2.0%.
"Deposit Accounts" has the meaning specified in the definition
"Collateral."
"Disbursing Bank" means any commercial bank with which a Controlled
Disbursement Account is maintained after the Effective Date.
"Dollar" and "$" means freely transferable United States dollars.
"EBITDA" has the meaning specified in SECTION 12.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Event" means (a) a "Reportable Event" as defined in Section
3032(c) of ERISA, but excluding any such event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations, (b) the filing
of a notice of intent to terminate a Benefit Plan subject to Title IV of ERISA
under a distress termination under Section 4041(c) of ERISA or the treatment of
an amendment to such a Benefit Plan as a termination under Section 4041(c) of
ERISA, (c) the institution of proceedings by the PBGC to terminate a Benefit
Plan subject to Title IV of ERISA or the appointment of a trustee to administer
any such Benefit Plan or an event or condition that might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan subject to Section
4042, (d) the imposition of any liability under Title IV of ERISA other than for
PBGC premiums due but not yet payable, (e) the filing of an application for a
minimum funding waiver under Section 412 of the Code, (f) a withdrawal by the
Borrower or any Related Company from a Benefit Plan subject to Section 4063 of
ERISA during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (g) a Benefit Plan intending to qualify under
Section 401(g) of the
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Code losing such qualified status, (h) the failure to make a material required
contribution to a Benefit Plan, (i) the Borrower or any Related Company being in
"default" (as defined in Section 4219(c)(5) of ERISA) with respect to payments
to a Multiemployer Plan because of its complete or partial withdrawal (as
described in Section 4203 or 4205 of ERISA) from such Multiemployer Plan, or (j)
the occurrence of a non-exempt prohibited transaction within the meaning of
Section 4975 of the Code or Section 406 of ERISA with respect to any Benefit
Plan.
"Effective Date" means the later of:
(a) the Agreement Date, and
(b) the first date on which all of the conditions set forth in ARTICLE
6 shall have been fulfilled.
"Effective Interest Rate" means each rate of interest per annum on the
Revolving Credit Loans and the Term Loan in effect from time to time pursuant to
the provisions of SECTIONS 5.1(A) and (B).
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, having total assets in excess
of $1,000,000,000; (ii) any commercial finance or asset-based lending affiliate
of any such commercial bank; and (iii) any Lender listed on the signature page
of this Agreement; PROVIDED in each case that the representation contained in
SECTION 14.2 hereof shall be applicable with respect to such institution or
Lender.
"Eligible Factored Receivables" means (a) any Receivable created by the
Borrower and sold and assigned to a Factor under its respective Factoring
Agreement and for which such Factor retains the Credit Risk under its respective
Factoring Agreement, (b) Receivables sold and assigned to a Factor under its
respective Factoring Agreement with recourse to the Borrower, owing by Account
Debtors obligated on Receivables held by such Factor and for which such Factor
retains the Credit Risk, in an aggregate amount at all times less than 5% of the
total amount of Receivables sold and assigned to such Factor under its Factoring
Agreement and (c) any Receivable sold and assigned to a Factor under its
respective Factoring Agreement with recourse to the Borrower but with respect to
which the Credit Risk has been fully insured in form and substance reasonably
satisfactory to the Agent and which policy has been endorsed or assigned to the
Agent, in each case LESS all discounts, returns, credits or allowances at any
time issued, owing or outstanding, LESS the amount by which the aggregate amount
of all such Receivables 60 days or more past due exceeds 10% of all such
accounts, LESS all such accounts that, to the Borrower's knowledge, remain
unpaid after 180 days after the invoice date therefor, LESS all reserves, LESS
any commissions due the Factors under their respective Factoring Agreements and
LESS any commissions due any credit insurer under any policy of credit insurance
(including the policy of American Credit Indemnity Company).
"Eligible Inventory" means, items of Inventory of the Borrower held for
sale in the ordinary course of business which meet all of the following
requirements:
(a) such Inventory is owned by the Borrower, is stored at a location
listed on SCHEDULE 7.1(V), is subject to the Security Interest, which is
perfected as to such Inventory, and is subject to no other Lien whatsoever other
than a Permitted Lien,
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(b) such Inventory consists of raw materials, greige goods and finished
goods and not work-in-process,
(c) such Inventory is in good condition and meets all standards imposed
by any governmental agency, or department or division thereof, having regulatory
authority over such goods, their use or sale,
(d) such Inventory is currently either usable or salable, at prices
approximating at least cost, in the normal course of the Borrower's business and
is not slow moving or stale,
(e) such Inventory is not obsolete or returned or repossessed or used
goods taken in trade,
(f) such Inventory is located within the United States at one of the
locations set forth in the most recent Schedule of Inventory,
(g) such Inventory is in the possession and control of the Borrower and
not any third party or if the Inventory is held by a third party bailee and a
negotiable instrument has not been issued with respect to it (i) a financing
statement which names the third party bailee as the debtor/bailee, names the
Borrower as the secured party/bailor, names the Agent as assignee of the secured
party/bailor and contains a description of such Inventory acceptable to the
Agent and otherwise in compliance with the requirements of Section 9-304(3) of
the UCC has been filed in the appropriate filing office and (ii) such other
steps as the Agent may reasonably require in order to establish and preserve the
priority of the Security Interest against secured creditors of the third party
bailee or the Borrower shall have been taken,
(h) if such Inventory is located in a warehouse or other facility
leased by the Borrower, the lessor has delivered to the Agent, on behalf of the
Lenders, a waiver and consent in form and substance satisfactory to the Agent,
and
(i) such Inventory is not determined by the Agent, on behalf of the
Lenders, in its reasonable credit judgment to be ineligible for any other
reason.
"Eligible Receivable" means a Receivable of the Borrower that consists
of the unpaid portion of the obligation stated on the invoice issued to an
Account Debtor with respect too Inventory sold and shipped to or services
performed for such Account Debtor in the ordinary course of business, net of any
credits or rebates owed by the Borrower to the Account Debtor and that meets all
of the following requirements:
(a) such Receivable is owned by the Borrower and represents a complete
bona fide transaction which requires no further act under any circumstances on
the part of the Borrower to make such Receivable payable by the Account Debtor,
(b) the due date for such Receivable shall not be more than 70 days
(or, as to not more than 15% of total Eligible Receivables, 90 days) from the
date of the shipment of the goods the sale of which gave rise to such Receivable
(or the date of performance of services for Receivables arising from the
performance of services),
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(c) no more than 120 days have elapsed from the date of the original
invoice nor more than 60 days from the due date of the original invoice,
(d) the goods the sale of which gave rise to such Receivable were
shipped or delivered to the Account Debtor on an absolute sale basis and not on
a consignment sale basis, a guaranteed sale basis, a sale or return basis, or on
the basis of any other similar understanding and no material part of such goods
has been returned or rejected,
(e) such Receivable is not evidenced by chattel paper or an instrument
of any kind unless such chattel paper or instrument has been collaterally
assigned to the Agent, for the benefit of itself as agent and the Lenders,
pursuant to an assignment in form and substance satisfactory to the Agent and is
in the possession of the Agent,
(f) the Account Debtor with respect to such Receivable is not insolvent
or the subject of any bankruptcy or insolvency proceedings of any kind or of any
other proceeding or action, threatened or pending, which might, in the Agent's
sole judgment, have a Materially Adverse Effect on such Account Debtor, and is
not, in the reasonable discretion of the Agent, deemed ineligible for credit or
other reasons,
(g) such Receivable is not owing by an Account Debtor having 50% or
more in face value of its then-existing accounts owing to the Borrower past due
more than 60 days from the due date of the original invoice,
(h) such Receivable is not owing by an Account Debtor whose
then-existing accounts owing to the Borrower exceed in face amount 15% of the
Borrower's total Eligible Receivables,
(i) if such Receivable arises from the performance of services, such
services have been fully rendered and do not relate to any warranty claim or
obligation,
(j) if the Account Debtor with respect thereto is located outside of
the United States of America (including Puerto Rico) or Canada, the goods which
gave rise to such Receivable were shipped after receipt by the Borrower from the
Account Debtor of an irrevocable letter of credit that has been confirmed by a
financial institution acceptable to the Agent in form and substance acceptable
to the Agent, payable in the full face amount of the face value of the
Receivable in Dollars at a place of payment located in the United States and
has, if requested by the Agent, been duly assigned to the Agent;
(k) such Receivable is a valid, legally enforceable obligation of the
Account Debtor with respect thereto and is not subject to any present or
contingent (and no facts exist which are the basis for any future) offset,
deduction or counterclaim, dispute or other defense on the part of such Account
Debtor, PROVIDED that any Receivable so subject to any offset, etc., if
otherwise an Eligible Receivable shall remain so to the extent of the excess of
such Receivable over the amount of any such offset, etc.,
(l) such Receivable is subject to the Security Interest, which is
perfected as to such Receivable, and is subject to no other Lien whatsoever
other than a Permitted Lien,
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(m) such Receivable is evidenced by an invoice or other documentation
in form acceptable to the Agent,
(n) the Receivable is not subject to the Assignment of Claims Act of
1940, as amended from time to time, or any Applicable Law now or hereafter
existing similar in effect thereto, or to any other prohibition (under
Applicable Law, by contract or otherwise) against its assignment or requiring
notice of or consent to such assignment, unless all such required notices have
been given, all such required consents have been received and all other
procedures have been complied with such that such Receivable shall have been
duly and validly assigned to the Agent, for the benefit of the Lenders,
(o) the goods giving rise to such Receivable were not, at the time of
the sale thereof, subject to any Lien, except the Security Interest and
Permitted Liens,
(p) the Borrower is not in breach of any express or implied
representation or warranty with respect to the goods the sale of which gave rise
to such Receivable nor in breach of any representation or warranty, covenant or
other agreement contained in the Loan Documents with respect to such Receivable,
(q) such Receivable does not arise out of any transaction with any
Subsidiary, Affiliate, creditor, tenant, lessor or supplier of the Borrower,
(r) the Borrower is not the beneficiary of any letter of credit that
has not been duly assigned to the Agent, nor has any bond or other undertaking
by a guarantor or surety been obtained, supporting such Receivable and the
Account Debtor's obligations in respect thereof,
(s) such Receivable does not arise out of finance or similar charges by
the Borrower or other fees for the time value of money,
(t) the Account Debtor with respect to such Receivable is not located
in New Jersey or any other state denying creditors access to its courts in the
absence of qualification to transact business in such state or the filing of a
Notice of Business Activities Report or other similar filing, unless the
Borrower has either qualified as a foreign corporation authorized to transact
business in such state or has filed a Notice of Business Activities Report or
similar filing with the applicable state agency for the then current year, and
(u) neither the Account Debtor with respect to such Receivable, nor
such Receivable, is determined by the Agent in its reasonable credit judgment to
be ineligible for any other reason.
"Environmental Laws" means all federal, state, local and foreign laws
now or hereafter in effect relating to pollution or protection of the
environment, including laws relating to emissions, discharges, Releases or
threatened Releases of pollutants, Contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, or land), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, removal, transport, or handling of pollutants, Contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes, and any and
all regulations, notices or demand letters issued, entered, promulgated or
approved thereunder; such laws and regulations include but are not limited to
the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 ET SEQ., as
amended; the Comprehensive Environmental Response, Compensation and Liability
Act, 42
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U.S.C. ss. 9601 ET SEQ., as amended; the Toxic Substances Control Act,
15 U.S.C. ss. 2601 ET SEQ., as amended; the Clean Air Act, 46 U.S.C. ss. 7401 ET
SEQ., as amended; and state and federal lien and environmental cleanup programs.
"Environmental Lien" means a Lien in favor of any governmental entity
for (a) any liability under Environmental Laws or (b) damages arising from, or
costs incurred by such governmental entity in response to, a Release or
threatened Release of Contaminant into the environment.
"Equipment" has the meaning specified in the definition "Collateral."
"Eurodollar Rate" means, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto a rate per annum determined pursuant to the
following formula, rounded upwards, if necessary, to the next higher 1/16 of 1%:
Eurodollar Rate = Interbank Offered Rate
-----------------------------------
1 - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Eurodollar Rate Revolving Credit Loan on
a Eurodollar Rate Term Loan.
"Eurodollar Rate Revolving Credit Loan" means a Revolving Credit Loan
bearing interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Term Loan" means a Term Loan bearing interest at a
rate determined with reference to the Eurodollar Rate.
"Eurodollar Reserve Percentage" applicable to any Interest Period means
the rate (expressed as a decimal) applicable to the Lenders during such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System for determining the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency or marginal
reserve requirement) of the Lenders with respect to "Eurocurrency Liabilities"
as that term is defined under such regulations. Without limiting the effect of
the foregoing, the Eurodollar Reserve Percentage shall include any other
reserves required to be maintained by the Lenders by reason of any regulatory
change with respect to (i) any category of liabilities that includes deposits by
reference to which the "Interbank Offered Rate" is to be determined as provided
in the definition of "Interbank Offered Rate" below or (ii) any category of
extensions of credit or other assets that includes Eurodollar Rate Loans.
"Event of Default" means any of the events specified in SECTION 13.1,
PROVIDED that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
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"Factoring Agreement" means each of (a) that certain Factoring
Agreement dated November 6, 1986 between CIT and the Borrower, as amended by
amendments dated November 1, 1987, September 15, 1989, March 31, 1992, August 1,
1992, May 3, 1993 and September 1, 1993, (b) that certain Factoring and Security
Agreement dated January 14, 1988 between FFC and the Borrower, as amended by
Amendment dated March 7, 1996, (c) that certain Amended and Restated Factoring
Agreement dated April 15, 1993 between NCC and the Borrower, (d) that certain
Factoring Agreement dated July 28, 1994 between RFC and the Borrower, as amended
by Amendment dated March 14, 1996, and (e) that certain Factoring Agreement
dated June 10, 1996 between CFC and the Borrower.
"Factors" means each of (a) The CIT Group/Commercial Services, Inc.
("CIT"), (b) First Factors Corporation ("FFC"), (c) NationsBanc Commercial
Corporation ("NCC"), (d) Republic Factors Corp. ("RFC"), and (e) Capital
Factors, Inc. ("CFC") in its capacity as a factor under its Factoring Agreement
with the Borrower and any other factor approved by the Agent which has executed
and delivered to the Agent documents, which, among other requirements, are
sufficient to waive such factor's right of set-off with respect to ledger debt
and to assign the proceeds of all factored Receivables to the Agent for the
benefit of the Lenders.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve system arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by BankBoston from three federal funds brokers of
recognized standing selected by BankBoston.
"Financial Officer" means the Chief Financial Officer, or Treasurer of
the Borrower.
"Financing Statements" means any and all Uniform Commercial Code
financing statements, in form and substance satisfactory to the Agent, executed
and delivered by the Borrower to the Agent, naming the Agent, for the benefit of
the Lenders, as secured party and the Borrower as debtor, in connection with
this Agreement.
"Fiscal Month" means each succeeding period of four or five consecutive
weeks, beginning on the first day of each Fiscal Year, occurring in the pattern
five weeks, four weeks, four weeks, except that in each 53-week Fiscal Year, the
final Fiscal Month of such Fiscal Year consists of five weeks.
"Fiscal Quarter" means each succeeding period of three consecutive
Fiscal Months beginning on the first day of each Fiscal Year.
"Fiscal Year" means the fifty-two or fifty-three week period beginning
on the Saturday after the Friday closest to October 31 in one calendar year and
ending on the Friday closest to October 31 in the following calendar year and
when followed or preceded by a designated calendar year means such period ending
on the Friday closest to October 31 of such designated year.
"GAAP" means generally accepted accounting principles consistently
applied and maintained throughout the period indicated and, when used with
reference to the Borrower or any Subsidiary, consistent with the prior financial
practice of the Borrower, as reflected on the financial statements
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referred to in SECTION 7.1(O); PROVIDED, HOWEVER, that, in the event that
changes shall be mandated by the Financial Accounting Standards Board or any
similar accounting authority of comparable standing, or shall be recommended by
the Borrower's independent public accountants, such changes shall be included in
GAAP as applicable to the Borrower only from and after such date as the
Borrower, the Required Lenders and the Agent shall have amended this Agreement
to the extent necessary to reflect any such changes in the financial covenants
set forth in ARTICLE 12.
"General Intangibles" has the meaning specified in the definition
"Collateral."
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
governmental bodies, whether federal, state, local or foreign national or
provincial and all agencies thereof.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
of another Person shall mean and include
(a) a guaranty (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), directly or indirectly, in any
manner, of any part or all of such obligation of such other Person, and
(b) an agreement, direct or indirect, contingent or otherwise, and
whether or not constituting a guaranty, the practical effect of which is to
assure the payment or performance (or payment of damages in the event of
nonperformance) of any part or all of such obligation of such other Person
whether by
(i) the purchase of securities or obligations,
(ii) the purchase, sale or lease (as lessee or lessor) of
property or the purchase or sale of services primarily for the purpose
of enabling the obligor with respect to such obligation to make any
payment or performance (or payment of damages in the event of
nonperformance) of or on account of any part or all of such obligation,
or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner
investing in the obligor with respect to such obligation,
(iv) repayment of amounts drawn down by beneficiaries of
letters of credit, or
(v) the supplying of funds to or investing in a Person on
account of all or any part of such Person's obligation under a Guaranty
of any obligation or indemnifying or holding harmless, in any way, such
Person against any part or all of such obligation.
"House Receivable" means any Eligible Receivable which is not an
Eligible Factored Receivable.
"Indebtedness" of any Person means, without duplication, all
Liabilities of such Person, and to the extent not otherwise included in
Liabilities, the following:
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(a) all obligations for Debt or for the deferred purchase price of
property or services or in respect of drafts accepted or similar instruments or
reimbursement obligations under letters of credit,
(b) all obligations (including, during the noncancellable term of any
lease in the nature of a title retention agreement, all future payment
obligations under such lease discounted to their present value in accordance
with GAAP) secured by any Lien to which any property or asset owned or held by
such Person is subject, whether or not the obligation secured thereby shall have
been assumed by such Person,
(c) all obligations of other Persons which such Person has Guaranteed,
including, but not limited to, all obligations of such Person consisting of
recourse liability with respect to accounts receivable sold or otherwise
disposed of by such Person,
(d) all obligations of such Person in respect of Interest Rate
Protection Agreements, and
(e) in the case of the Borrower (without duplication) all obligations
under the Revolving Credit Loans and the Term Loan.
"Installment Payment Date" means the first day of each month commencing
on February 1, 1998.
"Interbank Offered Rate" applicable to any Eurodollar Rate Loan for any
Interest Period means the rate of interest determined by BankBoston to be the
prevailing rate per annum at which deposits in U.S. dollars are offered to
BankBoston by first-class banks in the interbank Eurodollar market in which it
regularly participates on or about 10:00 a.m. (Boston, Massachusetts time) two
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Eurodollar Rate Loan to which
such interest Period is to apply for a period of time approximately equal to
such Interest Period.
"Interest Payment Date" means (a) as to Base Rate Loans, the first day
of each calendar month commencing on January 1, 1998 and continuing thereafter
until the Secured Obligations have been irrevocably paid in full and (b) as to
Eurodollar Rate Loans, the earlier of (i) the last day of each applicable
Interest Period or (ii) quarterly.
"Interest Period" means with respect to each Eurodollar Rate Loan, the
period commencing on the date of the making or continuation of or conversion to
such Eurodollar Rate Loan and ending one, two, three or six months thereafter,
as the Borrower may elect in the applicable Notice of Borrowing or Notice of
Conversion or Continuation; PROVIDED, that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall, subject to the provisions of CLAUSE (III)
below, be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to CLAUSE (III) below, end on the last Business
Day of a calendar month;
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(iii) any Interest Period that would otherwise end after the
Termination Date shall end on the Termination Date; and
(iv) no Interest Period applicable to an Loan made as part of
a Eurodollar Rate Term Loan may end after the next Installment Payment
Date unless the aggregate principal
amount of Base Rate Term Loans and Eurodollar Rate Term Loans having
Interest Periods ending prior to such Installment Payment Date is at
least equal to the amount of the principal repayment due hereunder on
such Installment Payment Date.
"Interest Rate Protection Agreement" shall mean an interest rate swap,
cap or collar agreement or similar arrangement between any Person and a
financial institution providing for the transfer or mitigation of interest risks
either generally or under specific contingencies.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Inventory" has the meaning specified in the definition "Collateral."
"Investment" means, with respect to any Person:
(a) the acquisition or ownership by such Person of any share of capital
stock, evidence of Indebtedness or other security issued by any other Person,
(b) any loan, advance or extension of credit to, or contribution to the
capital of, any other Person, excluding advances to employees in the ordinary
course of business for business expenses,
(c) any Guaranty of the obligations of any other Person,
(d) any other investment (other than the Acquisition of a Business
Unit) in any other Person, and
(e) any commitment or option to make any of the investments listed in
CLAUSES (A) through (D) above if, in the case of an option, the consideration
therefor exceeds $100.
"IRS" means the Internal Revenue Service.
"Lender" means at any time any financial institution party to this
agreement at such time, including any such Person becoming a party hereto
pursuant to the provisions of ARTICLE 14, and its successors and assigns, and
"Lenders" means at any time all of the financial institutions party to this
Agreement at such time, including any such Persons becoming parties hereto
pursuant to the provisions of ARTICLE 14, and their successors and assigns.
"Letter of Credit" means any Letter of Credit issued by BankBoston for
the account of the Borrower pursuant to the Existing Credit Agreement and
outstanding on the Effective Date or pursuant to ARTICLE 3.
"Letter of Credit Amount" means, with respect to any Letter of Credit,
the aggregate maximum amount at any time available for drawing under such Letter
of Credit.
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"Letter of Credit Facility" means a subfacility of the Revolving Credit
Facility providing for the issuance of Letters of Credit up to an aggregate
amount of Letter of Credit Obligations at any one time outstanding not to exceed
the amount of $1,000,000.
"Letter of Credit Obligations" means, at any time, the sum of (a) the
Reimbursement Obligations of the Borrower at such time, PLUS (b) the aggregate
Letter of Credit Amount of Letters of Credit outstanding at such time, PLUS (c)
the aggregate Letter of Credit Amount of Letters of Credit the issuance of which
has been authorized by the Agent and BankBoston pursuant to SECTION 3.4(B) but
that have not yet been issued, in each case as determined by the Agent.
"Letter of Credit Reserve" means, at any time, the aggregate Letter of
Credit Obligations at such time, other than Letter of Credit Obligations that
are fully secured by Cash Collateral.
"Liabilities" of any Person means all items (except for items of
capital stock, additional paid-in capital or retained earnings, or of general
contingency or deferred tax reserves) which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person as at the date as of which Liabilities are to be
determined.
"Lien" as applied to the property of any Person means:
(a) any mortgage, deed to secure debt, deed of trust, lien, pledge,
charge, lease constituting a Capitalized Lease Obligation, conditional sale or
other title retention agreement, or other security interest, security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom,
(b) any arrangement, express or implied, under which any property of
such Person is transferred, sequestered or otherwise identified for the purpose
of subjecting the same to the payment of Indebtedness or performance of any
other obligation in priority to the payment of the general, unsecured creditors
of such Person,
(c) any Indebtedness which is unpaid more than 30 days after the same
shall have become due and payable and which if unpaid might by law (including,
but not limited to, bankruptcy and insolvency laws), or otherwise, be given any
priority whatsoever over the claims of general unsecured creditors of such
Person, and
(d) the filing of, or any agreement to give, any financing statement
under the Uniform Commercial Code or its equivalent in any jurisdiction,
excluding informational financing statements relating to property leased by the
Borrower.
"Loan" means each Lender's advance made as part of any Revolving Credit
Loan or Term Loan, and any Revolving Credit Loan or Term Loan as well as all
such loans collectively, as the context requires.
"Loan Account" and "Loan Accounts" shall have the meanings ascribed
thereto in SECTION 5.5.
"Loan Documents" means collectively this Agreement, the Notes, the
Security Documents and each other instrument, agreement or document executed by
the Borrower or any Affiliate or Subsidiary of the Borrower in connection with
this Agreement whether prior to, on or after the
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Effective Date and each other instrument, agreement or document referred to
herein or contemplated hereby.
"Loan Year" means each period of 12 consecutive months commencing on
the Effective Date and on each anniversary thereof.
"Lockbox" means each U.S. Post Office Box specified in a Lockbox
Agreement.
"Lockbox Agreement" means each agreement between the Borrower and a
Clearing Bank concerning the establishment of a Lockbox for the collection of
Receivables.
"Long-Term Liabilities" means, with respect to any Person, the
aggregate amount of all Liabilities of such Person other than Current
Liabilities.
"Margin Stock" means margin stock as defined in Section 221.1(h) of
Regulation U, as the same may be amended or supplemented from time to time.
"Materially Adverse Effect" means, with respect to any Person, a
materially adverse effect upon such Person's business, assets, liabilities,
condition (financial or otherwise), results of operations or business prospects,
and in addition (i) with respect to the Borrower, means a materially adverse
effect upon the Borrower's ability to perform its obligations hereunder or under
any other Loan Document to which it is a party or upon the enforceability of
such obligations against the Borrower.
"Mortgage Modification" means each modification agreement executed and
delivered by the Borrower in respect of any Mortgage.
"Mortgages" means and includes any and all of the mortgages, deeds of
trust, deeds to secure debt, assignments and other instruments executed and
delivered by the Borrower to or for the benefit of the Agent by which the Agent,
on behalf of the Lenders, acquires a Lien on the Borrower's Real Estate or a
collateral assignment of the Borrower's interest under leases of Real Estate,
and all amendments, modifications and supplements thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or a Related Company is required to
contribute or has contributed within the immediately preceding six (6) years.
"Net Amount" means, with respect to any Investments made by any Person,
the gross amount of all such Investments MINUS the aggregate amount of all cash
received and the fair value, at the time of receipt by such Person, of all
property received as payments of principal or premiums, returns of capital,
liquidating dividends or distributions, proceeds of sale or other dispositions
with respect to such Investments.
"Net Income" means, as applied to any Person, the net income (or net
loss) of such Person for the period in question after giving effect to deduction
of or provision for all operating expenses, all taxes and reserves (including
reserves for deferred taxes) and all other proper deductions, all determined in
accordance with GAAP, provided that there shall be excluded:
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(a) the net income (or net loss) of any Person accrued prior to the
date it becomes a Subsidiary of, or is merged into or consolidated with, the
Person whose Net Income is being determined or a Subsidiary of such Person,
(b) the net income (or net loss) of any Person in which the Person
whose Net Income is being determined or any Subsidiary of such Person has an
ownership interest, except, in the case of net income, to the extent that any
such income has actually been received by such Person or such Subsidiary in the
form of cash dividends or similar distributions,
(c) any restoration of any contingency reserve, except to the extent
that provision for such reserve was made out of income during such period,
(d) any net gains or losses on the sale or other disposition, not in
the ordinary course of business, of Investments, Business Units and other
capital assets, provided that there shall also be excluded any related charges
for taxes thereon,
(e) any net gain arising from the collection of the proceeds of any
insurance policy,
(f) any write-up of any asset, and
(g) any other extraordinary item.
"Net Outstandings" of any Lender means, at any time, the sum of (a) all
amount paid by such Lender (other than pursuant to SECTION 15.7) to the Agent in
respect of Loans under the Revolving Credit Facility or otherwise under this
Agreement, MINUS (b) all amounts received by the Agent and paid by the Agent to
such Lender for application, pursuant to this Agreement, to reduction of the
outstanding principal balance of the Loans of such Lender outstanding under the
Revolving Credit Facility.
"Net Proceeds" means proceeds received by the Borrower or any of its
Subsidiaries in cash from any Asset Disposition (including, without limitation,
payments under notes or other debt securities received in connection with any
Asset Disposition), net of: (a) the transaction costs of such sale, lease,
transfer or other disposition; (b) any tax liability arising from such
transaction; and (c) amounts applied to repayment of Indebtedness (other than
the Secured Obligations) secured by a Lien on the asset or property disposed.
"Net Worth" means, with respect to any Person, such Person's total
shareholder's equity (including capital stock, additional paid-in capital and
retained earnings, after deducting treasury stock) which would appear as such on
a balance sheet of such Person prepared in accordance with GAAP.
"Non-Ratable Loan" means a Base Rate Revolving Credit Loan made by
BankBoston in accordance with the provisions of SECTION 5.8(C).
"Note" means any of the Revolving Credit Notes and the Term Notes and
"Notes" means more than one such Note.
"Notice of Borrowing" has the meaning specified in SECTION 2.2(A).
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"Notice of Conversion or Continuation" has the meaning specified in
SECTION 5.14.
"Operating Lease" means any lease (other than a lease constituting a
Capitalized Lease Obligation) of real or personal property.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Patent Assignment" means the Assignment for Security-Patents, dated on
or about the Effective Date, made by the Borrower to the Agent, for the benefit
of the Lenders, as the same may be amended, modified or supplemented from time
to time.
"Patents" means and includes, in each case whether now existing or
hereafter arising, all of the Borrower's right, title and interest in and to
(a) any and all patents and patent applications,
(b) inventions and improvements described and claimed therein,
(c) reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof,
(d) income, royalties, damages, claims and payments now or hereafter
due and/or payable under and with respect thereto, including, without
limitation, damages and payments for past and future infringements thereof,
(e) rights to sue for past, present and future infringements thereof,
and
(f) all rights corresponding to any of the foregoing throughout the
world.
"Permitted Investments" means Investments of the Borrower in:
(a) negotiable certificates of deposit and time deposits issued by
BankBoston or by any United States bank or trust company having capital, surplus
and undivided profits in excess of $100,000,000,
(b) any direct obligation of the United States of America or any Agency
or instrumentality thereof which has a remaining maturity at the time of
purchase of not more than one year and repurchase agreements relating to the
same,
(c) sales of inventory on credit in the ordinary course of business,
(d) shares of capital stock, evidence of Indebtedness or other security
acquired by the Borrower in consideration for or as evidence of past-due or
restructured Receivables in an aggregate face amount of such Receivables at any
time not to exceed $1,000,000,
(e) Guaranties permitted pursuant to SECTION 12.3,
(f) those items described on SCHEDULE 1.1B - PERMITTED INVESTMENTS, and
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(g) other Investments not in excess of $500,000 individually or
$1,000,000 in the aggregate in any fiscal year of the Borrower.
"Permitted Liens" means:
(a) Liens securing taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA)
or the claims of materialmen, mechanics, carriers, warehousemen or landlords for
labor, materials, supplies or rentals incurred in the ordinary course of
business, but (i) in all cases only if payment shall not at the time be required
to be made in accordance with SECTION 10.6, and (ii) in the case of warehousemen
or landlords, only if such liens are junior to the Security Interest in any of
the Collateral,
(b) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or under
payment or performance bonds,
(c) Liens constituting encumbrances in the nature of zoning
restrictions, easements, and rights or restrictions of record on the use of real
property, which do not materially detract from the value of such property or
impair the use thereof in the business of the Borrower,
(d) Purchase Money Liens,
(e) Liens shown on SCHEDULE 1.1C - PERMITTED LIENS,
(f) Liens of Factors under the terms and conditions of the Factoring
Agreement, and
(g) Liens of the Agent, for the benefit of the Lenders, arising under
this Agreement and the other Loan Documents.
"Permitted Purchase Money Debt" means Purchase Money Debt of the
Borrower incurred after the Agreement Date
(a) which is secured by a Purchase Money Lien,
(b) the aggregate principal amount of which does not exceed an amount
equal to 100% of the lesser of
(i) the cost (including the principal amount of such Debt,
whether or not assumed) of the property (other than Inventory) subject
to such Lien, and
(ii) the fair value of such property (other than Inventory) at
the time of its acquisition, and
(c) which, when aggregated with the principal amount of all other such
Debt and Capitalized Lease Obligations of the Borrower at the time outstanding,
does not exceed $2,000,000.
For the purposes of this definition, the principal amount of any Purchase Money
Debt consisting of Capitalized Leases shall be computed as a Capitalized Lease
Obligation.
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"Person" means an individual, corporation, limited liability company,
partnership, association, trust or unincorporated organization, or a government
or any agency or political subdivision thereof.
"Projections" means the forecasted (a) balance sheets, (b) income
statements and (c) cash flow statements of the Borrower for the Borrower's 1998
fiscal year, prepared on a monthly basis, together with appropriate supporting
details and a statement of underlying assumptions and reflecting, among other
things, projected Availability.
"Proprietary Rights" means all of the Borrower's now owned and
hereafter arising or acquired: Patents, Copyrights, Trademarks, including,
without limitation, those Proprietary Rights set forth on SCHEDULE 7.1(CC)
hereto, and all other rights under any of the foregoing, all extensions,
renewals, reissues, divisions, continuations, and continuations-in-part of any
of the foregoing, and all rights to sue for past, present and future
infringement of any of the foregoing.
"Purchase Money Debt" means
(a) Debt created to secure the payment of all or any part of the
purchase price of any property (other than Inventory),
(b) any Debt incurred at the time of or within 30 days prior to or
after the acquisition of any property (other than Inventory) for the purpose of
financing all or any part of the purchase price thereof, and
(c) any renewals, extensions or refinancings thereof, but not any
increases in the principal amounts thereof outstanding at the time of any such
renewal, extension or refinancing.
"Purchase Money Lien" means any Lien securing Purchase Money Debt, but
only if such Lien shall at all times be confined solely to the property (other
than Inventory) the purchase price of which was financed through the incurrence
of the Purchase Money Debt secured by such Lien.
"Real Estate" means all of the Borrower's now or hereafter owned or
leased estates in real property, including, without limitation, all fees,
leaseholds and future interests, together with all of the Borrower's now or
hereafter owned or leased interests in the improvements and emblements thereon,
the fixtures attached thereto and the easements appurtenant thereto, including,
without limitation the real property described on SCHEDULE 7.1(X).
"Receivables" has the meaning specified in the definition "Collateral."
"Register" has the meaning specified in SECTION 14.1(D).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Reimbursement Agreement" means, with respect to a Letter of Credit,
such form of application therefor and form of reimbursement agreement therefor
(whether in a single document or several documents) as BankBoston may employ in
the ordinary course of business for its own account, with such modifications
thereto as may be agreed upon by BankBoston and the Borrower,
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provided that such application and agreement and any modifications thereto are
not inconsistent with the terms of this Agreement.
"Reimbursement Obligations" means the reimbursement or repayment
obligations of the Borrower to BankBoston pursuant to SECTION 3.6 or pursuant to
a Reimbursement Agreement with respect to amounts that have been drawn under
Letters of Credit.
"Related Company" means any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Borrower; or (iii)
member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as the Borrower, any corporation described
in CLAUSE (I) above or any partnership, trade or business described in CLAUSE
(II) above.
"Release" means release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment or into or out of any property, including the movement of
Contaminants through or in the air, soil, surface water or groundwater.
"Remedial Action" means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (iii) perform
pre-remedial studies and investigations and post-remedial monitoring and care.
"Required Lenders" means, at any time, any combination of Lenders whose
Commitment Percentages at such time aggregate in excess of 51%.
"Restricted Payment" means (a) any dividend, distribution or payment on
or with respect to (i) any shares of a Person's capital stock (other than
dividends payable solely in shares of its capital stock) or (ii) any partnership
interest in a Person, excluding, however, any such dividend, distribution or
payment to the Borrower by any Subsidiary of the Borrower, (b) any redemption or
prepayment or other retirement, prior to the stated maturity thereof or prior to
the due date of any regularly scheduled installment or amortization payment with
respect thereto, of any Debt (other than the Loans) or of any Indebtedness that
is junior and subordinate to the Secured Obligations, (c) the payment by any
Person of the principal amount of or interest on any Indebtedness (other than
trade debt) owing to a shareholder, partner or equity holder of such Person or
to any Affiliate of any such shareholder, partner or equity holder and (d) the
payment of any management, consulting or similar fee by any Person to any
Affiliate of such Person.
"Restricted Purchase" means any payment on account of the purchase,
redemption or other acquisition or retirement by a Person of any (a) shares of
such Person's capital stock (except shares acquired on the conversion thereof
into other shares of capital stock of such Person) or (b) a partnership interest
in such Person, if such Person is a partnership.
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"Revolving Credit Facility" means the principal amount of $45,000,000
or such lesser or greater amount as shall be agreed upon from time to time in
writing by the Agent, the Lenders and the Borrower.
"Revolving Credit Loans" means "Revolving Credit Loans" outstanding
under and as defined in the Existing Credit Agreement on the Effective Date and
loans made to the Borrower pursuant to SECTION 2.1, including any Non-Ratable
Loans.
"Revolving Credit Note" means each Amended and Restated Revolving
Credit Note made by the Borrower payable to the order of a Lender evidencing the
obligation of the Borrower to pay the aggregate unpaid principal amount of the
Revolving Credit Loans made to it by such Lender (and any promissory note or
notes that may be issued from time to time in substitution, renewal, extension,
replacement or exchange therefor whether payable to such Lender or to a
different Lender in connection with a Person becoming a Lender after the
Effective Date or otherwise) substantially in the form of EXHIBIT A hereto, with
all blanks properly completed, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended or
refinanced.
"Rival Note" means the promissory note dated December 15, 1997, in the
original principal amount of $3,800,000 made payable to the Borrower by
Clarendon Holdings, LLC, an Affiliate of Mentmore Holdings Corp., in payment of
the purchase price of the Borrower's membership interest in Rival Sport LLC, a
Delaware limited liability company, which note is repayable as to principal in a
single payment on the tenth anniversary of the date of issuance thereof (subject
to required prepayments from specified funds) and as to interest, at the rate of
5% per annum, only when principal is repaid.
"Schedule of Inventory" means a schedule delivered by the Borrower to
the Agent pursuant to the provisions of SECTION 9.12(B).
"Schedule of Receivables" means a schedule delivered by the Borrower to
the Agent pursuant to the provisions of SECTION 9.12(A).
"Secured Obligations" means, in each case whether now in existence or
hereafter arising,
(a) the principal of, and interest and premium, if any, on, the Loans,
(b) the Reimbursement Obligations and all other obligations of the
Borrower to the Agent or any Lender arising in connection with the issuance of
Letters of Credit,
(c) all indebtedness, liabilities, obligations, covenants and duties of
the Borrower to the Agent or to the Lenders of every kind, nature and
description arising under or in respect of this Agreement, the Notes or any of
the other Loan Documents, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any note, and whether or not for the payment of money,
including without limitation, fees required to be paid pursuant to ARTICLE 5 and
expenses required to be paid or reimbursed pursuant to SECTION 16.2 and
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(d) the CIT Ledger Debt and all other indebtedness, liabilities,
obligations, covenants and duties of the Borrower to any Lender, of every kind,
nature and description arising other than under this Agreement, the Notes or any
of the other Loan Documents.
"Security Documents" means each of the following:
(a) the Mortgages,
(b) the Mortgage Modifications
(c) the Financing Statements,
(d) the Patent Assignment,
(e) the Trademark Assignment,
(f) Assignments of Factoring Proceeds, and
(g) each other writing executed and delivered by the Borrower or any
other Person securing the Secured Obligations.
"Security Interest" means the Liens of the Agent, for the benefit of
the Lenders, on and in the Collateral effected hereby or by any of the Security
Documents or pursuant to the terms hereof or thereof.
"Settlement Date" means each Business Day after the Effective Date
selected by the Agent in its sole discretion as of which a Settlement Report is
delivered by the Agent and on which settlement is to be made among the Lenders
in accordance with the provisions of SECTION 5.8, PROVIDED, that a Settlement
Date shall occur at least every five Business Days.
"Settlement Report" means each report, substantially in the form
attached hereto as EXHIBIT F, prepared by the Agent and delivered to each Lender
and setting forth, among other things, as of the Settlement Date indicated
thereon and as of the next preceding Settlement Date, the aggregate principal
balance of all Revolving Credit Loans outstanding, each Lender's Commitment
Percentage thereof, each Lender's Net Outstandings and all Non-Ratable Loans
made, and all payments of principal, interest and fees received by the Agent
from the Borrower during the period beginning on such next preceding Settlement
Date and ending on such Settlement Date.
"Subordinated Debt" means the Borrower's 8 3/4% Senior Subordinated
Debentures due August 1, 1999 in an aggregate principal amount not to exceed
$34,500,000, 11% subordinated Extendible Debentures due April 1, 2000, Series C
in an aggregate principal amount not to exceed $8,050,000 and other Debt of the
Borrower that is subordinated to the Secured Obligations on terms and conditions
satisfactory to the Agent and the Required Lenders.
"Subsidiary"
(a) when used to determine the relationship of a Person to another
Person, means a Person of which an aggregate of 50% or more of the stock of any
class or classes or 50% or more of other
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ownership interests is owned of record or beneficially by such other Person, or
by one or more Subsidiaries of such other Person, or by such other Person and
one or more Subsidiaries of such Person,
(i) if the holders of such stock, or other ownership
interests, (A) are ordinarily, in the absence of contingencies,
entitled to vote for the election of a majority of the directors (or
other individuals performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of such
a contingency, or (B) are entitled, as such holders, to vote for the
election of a majority of the directors (or individuals performing
similar functions) of such Person, whether or not the right so to vote
exists by reason of the happening of a contingency, or
(ii) in the case of such other ownership interests, if such
ownership interests constitute a majority voting interest,
(b) when used without other designation of ownership, means a
Subsidiary of the Borrower.
"Term Loan" means the aggregate principal amount outstanding to each
Lender on the Effective Date under that "Term Loan Facility" as defined in the
Existing Credit Agreement, PLUS the amount advanced by the Lenders pursuant to
SECTION 4.1, and refers to both Eurodollar Rate Term Loans and the Base Rate
Term Loans.
"Term Loan Facility" means the principal amount of $10,000,000.
"Term Note" means each Amended, Restated and Consolidated Term Note
made by the Borrower payable to the order of a Lender evidencing the obligation
of the Borrower to pay the aggregate unpaid principal amount of the Term Loans
made to it by such Lender (and any promissory note or notes that may be issued
from time to time in substitution, renewal, extension, replacement or exchange
therefor whether payable to such Lender or to a different Lender in connection
with a Person becoming a Lender after the Effective Date or otherwise)
substantially in the form of EXHIBIT B hereto, with all blanks properly
completed, either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or refinanced.
"Termination Date" means May 31, 1999, such earlier date as all Secured
Obligations shall have been irrevocably paid in full and the Revolving Credit
Facility shall have been terminated, or such later date as to which the same may
be extended pursuant to the provisions of SECTION 2.5.
"Total Facilities" means the aggregate of the Revolving Credit Facility
and the Term Loan Facility.
"Trademark Assignment" means the Assignment for Security - Trademarks,
dated on or about the Effective Date, by the Borrower to the Agent for the
benefit of the Lender, as the same may be amended, modified or supplemented from
time to time.
"Trademarks" means and includes in each case whether now existing or
hereafter arising, all of the Borrower's right, title and interest in and to
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(a) trademarks (including service marks), trade names and trade styles
and the registrations and applications for registration thereof and the goodwill
of the business symbolized by the trademarks,
(b) licenses of the foregoing, whether as licensee or licensor,
(c) renewals thereof,
(d) income, royalties, damages and payments now or hereafter due and/or
payable with respect thereto, including, without limitation, damages, claims and
payments for past and future infringements thereof,
(e) rights to sue for past, present and future infringements thereof,
including the right to settle suits involving claims and demands for royalties
owing, and
(f) all rights corresponding to any of the foregoing throughout the
world.
"Unfunded Vested Accrued Benefits" means with respect to any Benefit
Plan at any time, the amount (if any) by which
(a) the present value of all vested nonforfeitable benefits under such
Benefit Plan exceeds
(b) the fair market value of all Benefit Plan assets allocable to such
benefits,
all determined as of the then most recent valuation date for such Benefit Plan.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of Georgia.
"Wholly Owned Subsidiary" when used to determine the relationship of a
Subsidiary to a Person means a Subsidiary all of the issued and outstanding
shares (other than directors' qualifying shares) of the capital stock of which
shall at the time be owned by such Person or one or more of such Person's Wholly
Owned Subsidiaries or by such Person and one or more of such Person's Wholly
Owned Subsidiaries.
SECTION 1.2. General.
(a) All terms of an accounting nature not specifically defined herein
shall have the meaning ascribed thereto by GAAP.
(b) The terms accounts, chattel paper, contract rights, documents,
equipment, instruments, general intangibles, inventory and proceeds, as and when
used in this Agreement or the Security Documents, shall have the meanings given
those terms in the Uniform Commercial Code.
(c) Unless otherwise specified, a reference in this Agreement to a
particular section or subsection is a reference to that section or subsection of
this Agreement, and the words "hereof," "herein," "hereunder" and words of
similar import, when used in this Agreement, refer to this Agreement as a whole
and not to any particular provision, section or subsection of this Agreement.
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(d) Wherever from the context it appears appropriate, each term stated
in either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Words denoting individuals include
corporations and vice versa.
(e) References to any legislation or statute or code, or to any
provisions of any legislation or statute or code, shall include any modification
or reenactment of, or any legislative, statutory or code provision substituted
for, such legislation, statute or code or provision thereof.
(f) References to any document or agreement (including this Agreement)
shall include references to such document or agreement as amended, novated,
supplemented, modified or replaced from time to time, so long as and to the
extent that such amendment, novation, supplement, modification or replacement is
either not prohibited by the terms of this Agreement or is consented to by the
Required Lenders and the Agent.
(g) Except where specifically restricted in a Loan Document, references
to any Person include its successor or permitted substitutes and assigns
permitted or not prohibited under such Loan Document.
(h) References to the time of day are to the time of day in the city in
which the Agent's Office is located.
(i) The terms "payment", "prepayment", "distribution" and similar terms
used in the definitions of "Restricted Distribution" and "Restricted Payment"
and in SECTION 10.6, shall include payment by means of the transfer of funds or
of property and, in the event of a transfer of property, the payment shall be
deemed to be in an amount equal to the greater of the fair market value and the
book value of the property at the time of the transfer.
(j) Titles of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither limit nor
amplify the provisions of this Agreement, and all references in this Agreement
to Articles, Sections, subsections, paragraphs, clauses, subclauses, Schedules
or Exhibits shall refer to the corresponding Article, Section, subsection,
paragraph, clause or subclause of, or Schedule or Exhibit attached to, this
Agreement, unless specific reference is made to the articles, sections or other
subdivisions or divisions of, or to schedules or exhibits to, another document
or instrument.
(k) Whenever from the context it appears appropriate, the term "Loan",
including such terms as used as part of a defined term including the term
"Loan", shall mean and include a Loan made by all Lenders to the Borrower as
well as a Lender's Proportionate Share of any Loan.
(l) Unless otherwise specified herein, any Lien created or purported to
be created hereby or by or pursuant to any Loan Document in favor of the Agent
and each payment made to the Agent, is and shall be deemed to have been created
in favor of the Agent, for its benefit as Agent and for the Ratable benefit of
the Lenders, or made to and received by the Agent for the Ratable benefit of the
Lenders.
(m) Whenever the phrase "to the knowledge of the Borrower" or words of
similar import relating to the knowledge of the Borrower are used herein, such
phrase shall mean and refer to (i) the
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actual knowledge of the chief executive officer, chief operating officer or
chief financial officer or (ii) the knowledge that such officers would have
obtained if they had engaged in good faith in the diligent performance of their
duties, including the making of such reasonable specific inquiries as may be
necessary of the appropriate persons in a good faith attempt to ascertain the
accuracy of the matter to which such phrase relates.
SECTION 1.3 Exhibits and Schedules. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
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ARTICLE 2
REVOLVING CREDIT FACILITY
SECTION 2.1. Revolving Credit Loans. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, each Lender agrees, severally, but not jointly, to make
Revolving Credit Loans to the Borrower from time to time from the Effective Date
to but not including the Termination Date, as requested or deemed requested by
the Borrower in accordance with the terms of SECTION 2.2, in amounts equal to
such Lender's Commitment Percentage of each Borrowing requested or deemed
requested hereunder up to an aggregate amount at any one time outstanding equal
to such Lender's Commitment Percentage of the Borrowing Base; PROVIDED, HOWEVER,
that the aggregate principal amount of all outstanding Revolving Credit Loans
(after giving effect to the Loans requested) shall not exceed the Borrowing
Base. It is expressly understood and agreed that the Lenders may and at present
intend to use the Borrowing Base as a maximum ceiling on Revolving Credit Loans
made to the Borrower; PROVIDED, HOWEVER, that it is agreed that should the
aggregate outstanding amount of such Loans exceed the ceiling so determined or
any other limitation set forth in this Agreement, such Loans shall nevertheless
constitute Secured Obligations and, as such, shall be entitled to all benefits
thereof and security therefor. The principal amount of any Loan made under the
Revolving Credit Facility which is repaid may be reborrowed by the Borrower,
subject to the terms and conditions of this Agreement, in accordance with the
terms of this SECTION 2.1. The Agent's and each Lender's books and records
reflecting the date and the amount of each Loan made under the Revolving Credit
Facility and each repayment of principal thereof shall constitute PRIMA FACIE
evidence of the accuracy of the information contained therein, subject to the
provisions of SECTION 5.8.
SECTION 2.2. Manner of Borrowing Revolving Credit Loans. Borrowings
under the Revolving Credit Facility shall be made as follows:
(a) Requests for Borrowing.
(i) Base Rate Revolving Credit Loans. Unless the Borrower
shall previously have requested a Eurodollar Rate Revolving Credit Loan
and authorized the application of the proceeds thereof to any purpose
described in CLAUSES (A) through (E) below and the Lenders shall have
disbursed such Eurodollar Rate Revolving Credit Loan for such purpose,
a request for a Borrowing of Base Rate Loans constituting under the
Revolving Credit Facility shall be made, or shall be deemed to be made,
in the following manner:
(A) the Borrower may request a Base Rate Revolving
Credit Loan by notifying the Agent, before 12:30 p.m. on the
proposed borrowing date, of its intention to borrow,
specifying the amount of the proposed borrowing and the
proposed borrowing date,
(B) whenever a check or other item is presented to a
Disbursing Bank for payment against a Controlled Disbursement
Account in an amount greater than the then available balance
in such account, such Disbursing Bank shall, and is hereby
irrevocably authorized by the Borrower to, give the Agent
notice thereof, which notice shall be deemed to be a request
for a Borrowing of Base Rate Revolving Credit Loans
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on the date of such notice in an amount equal to the excess of
such check or other item over such available balance, and such
request shall be irrevocable,
(C) unless payment is otherwise made by the Borrower,
the becoming due of any amount required to be paid under this
Agreement or any of the Notes as interest shall be deemed to
be a request for a Borrowing of Base Rate Revolving Credit
Loans on the due date in the amount required to pay such
interest, and such request shall be irrevocable,
(D) unless payment is otherwise made by a Borrower, a
becoming due of any other Secured Obligation shall be deemed
to be a request for a Borrowing of Base Rate Revolving Credit
Loans on the due date in the amount then so due, and such
request shall be irrevocable, and
(E) the receipt by the Agent of notification from
BankBoston to the effect that a drawing has been made under a
Letter of Credit and that the Borrower has failed to reimburse
BankBoston therefor in accordance with the terms of the Letter
of Credit, the Reimbursement Agreement and ARTICLE 3, shall be
deemed to be a request for a Borrowing of Base Rate Revolving
Credit Loans on the date such notification is received in the
amount of such drawing which is so unreimbursed;
PROVIDED that if any notice referred to in CLAUSE (A) above is received
after 12:30 p.m. on the proposed borrowing date, the proposed borrowing
will be postponed automatically to the next Business Day.
(ii) Eurodollar Rate Revolving Credit Loans. The Borrower may
request a Borrowing of Eurodollar Rate Loans under the Revolving Credit
Facility by notifying the Agent (which notice shall be irrevocable) not
later than 11:30 a.m. on the date three Business Days before the day on
which the requested Eurodollar Rate Revolving Credit Loans are to be
made, specifying the effective date and amount of such Eurodollar Rate
Revolving Credit Loans requested and the duration of the applicable
Interest Period.
(iii) Notification of Lenders. Unless the Agent has elected
periodic settlements pursuant to SECTION 5.8, the Agent shall promptly
notify the Lenders of any notice of borrowing given or deemed given
pursuant to this SECTION 2.2(A) by 12:00 noon on the proposed borrowing
date (in the case of Base Rate Loans) or by 3:00 p.m. three Business
Days before the proposed borrowing date (in the case of Eurodollar Rate
Loans). Not later than 1:30 p.m. on the proposed borrowing date, each
Lender will make available to the Agent, for the account of the
Borrower, at the Agent's Office in funds immediately available to the
Agent, such Lender's Base Rate Loan or Eurodollar Rate Loan, as the
case may be, in an amount equal to such Lender's Commitment Percentage
of the Borrowing to be made on such date.
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(b) Disbursement of Loans. The Borrower hereby irrevocably authorizes
the Agent to disburse the proceeds of each Borrowing requested, or deemed to be
requested, pursuant to this SECTION 2.2(A) as follows:
(i) the proceeds of each Borrowing requested under SECTIONS
2.2(A)(I)(A) or (B) or 2.2(A)(II) shall be disbursed by the Agent in
Dollars in immediately available funds by wire transfer to a Controlled
Disbursement Account or, in the absence of a Controlled Disbursement
Account, by wire transfer to such other account as may be agreed upon
by the Borrower and the Agent from time to time,
(ii) the proceeds of each borrowing deemed requested under
SECTION 2.2(A)(I)(C) or (D) shall be disbursed by the Agent by way of
direct payment of the relevant interest or Secured Obligation, and
(iii) the proceeds of each borrowing deemed requested under
SECTION 2.2(A)(I)(E) shall be disbursed by the Agent directly to
BankBoston on behalf of the Borrower.
SECTION 2.3. Repayment of Revolving Credit Loans. The Revolving Credit
Loans will be repaid as follows:
(a) Whether or not any Default or Event of Default has occurred, the
outstanding principal amount of all the Revolving Credit Loans is due and
payable, and shall be repaid by the Borrower in full, not later than the
Termination Date;
(b) If at any time the aggregate outstanding unpaid principal amount of
the Revolving Credit Loans exceeds the Borrowing Base in effect at such time,
the Borrower shall repay the Revolving Credit Loans in an amount sufficient to
reduce the aggregate unpaid principal amount of such Revolving Credit Loans by
an amount equal to such excess, together with accrued and unpaid interest on the
amount so repaid to the date of repayment; and
(c) The Borrower hereby instructs the Agent to repay the Revolving
Credit Loans outstanding on any day in an amount equal to the amount received by
the Agent on such day pursuant to SECTION 9.1(B).
Repayments pursuant to SECTION 2.3(B) or (C) shall be applied first to the Base
Rate Revolving Credit Loans, and then to Eurodollar Rate Revolving Credit Loans.
SECTION 2.4. Revolving Credit Note. Each Lender's Revolving Credit Loans
and the obligation of the Borrower to repay such Loans shall also be evidenced
by a Revolving Credit Note payable to the order of such Lender. Each Revolving
Credit Note shall be dated the Effective Date (or later "effective date" under
any Assignment and Acceptance) and be duly and validly executed and delivered by
the Borrower.
SECTION 2.5. Extension of Revolving Credit Facility. Upon the request of
the Borrower, the Lenders may, in their sole discretion, effective as of any
anniversary of the Effective Date, agree to extend the Revolving Credit Facility
for a period of one year. Each such extension shall be effected by the delivery
to the Borrower of a written notice to that effect by the Lenders, not less than
30 days prior to such anniversary date.
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ARTICLE 3
LETTER OF CREDIT FACILITY
SECTION 3.1. Agreement to Issue. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, BankBoston agrees to issue for the account of the
Borrower one or more Letters of Credit in accordance with this ARTICLE 3, from
time to time during the period commencing on the Effective Date and ending on
the Termination Date.
SECTION 3.2. Amounts. BankBoston shall not have any obligation to issue
any Letter of Credit at any time:
(a) if, after giving effect to the issuance of the requested Letter of
Credit, (i) the aggregate Letter of Credit Obligations of the Borrower would
exceed the Letter of Credit Facility then in effect or (ii) the aggregate
principal amount of the Revolving Credit Loans outstanding would exceed the
Borrowing Base (after reduction for the Letter of Credit Reserve in respect of
such Letter of Credit) or (iii) if no Revolving Credit Loans are outstanding,
the aggregate Letter of Credit Obligations would exceed the Borrowing Base; or
(b) which has a term longer than one calendar year or an expiration
date after the last Business Day that is more than 30 days prior to the
Termination Date.
SECTION 3.3. Conditions. The obligation of BankBoston to issue any Letter
of Credit is subject to the satisfaction of (a) the conditions precedent
contained in ARTICLE 6 and (b) the following additional conditions precedent in
a manner satisfactory to the Agent and BankBoston:
(i) the Borrower shall have delivered to BankBoston and the
Agent at such times and in such manner as BankBoston or the Agent may
prescribe an application in form and substance satisfactory to
BankBoston and the Agent for the issuance of the Letter of Credit, a
Reimbursement Agreement and such other documents as may be required
pursuant to the terms thereof, and the form and terms of the proposed
Letter of Credit shall be satisfactory to BankBoston and the Agent; and
(ii) as of the date of issuance, no order of any court,
arbitrator or governmental authority having jurisdiction or authority
over BankBoston shall purport by its terms to enjoin or restrain banks
generally from issuing letters of credit of the type and in the amount
of the proposed Letter of Credit, and no law, rule or regulation
applicable to banks generally and no request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over banks generally shall prohibit, or request that
BankBoston refrain from, the issuance of letters of credit generally or
the issuance of such Letter of Credit.
SECTION 3.4. Issuance of Letters of Credit.
(a) Request for Issuance. The Borrower shall give BankBoston and the
Agent written notice of the Borrower's request for the issuance of a Letter of
Credit no later than six Business Days prior to the proposed date of issuance of
the Letter of Credit. Such notice shall be irrevocable and shall specify the
original face amount of the Letter of Credit requested, the effective date
(which date shall be a Business Day) of issuance of such requested Letter of
Credit, whether such Letter of Credit may be drawn in a single or in multiple
draws, the date on which such requested Letter of Credit is to expire (which
date shall be a Business Day earlier than the 30th day prior to the Termination
Date), the purpose for which such Letter of Credit is to
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be issued and the beneficiary of the requested Letter of Credit. The Borrower
shall attach to such notice the form of the Letter of Credit that the Borrower
requests to be issued.
(b) Responsibilities of the Agent; Issuance. The Agent shall determine,
as of the Business Day immediately preceding the requested effective date of
issuance of the Letter of Credit set forth in the notice from the Borrower
pursuant to SECTION 3.4(A), the amount of the unused Letter of Credit Facility
and the Borrowing Base. If (i) the form of the Letter of Credit delivered by the
Borrower to the Agent is acceptable to BankBoston and the Agent in their sole,
reasonable discretion, (ii) the undrawn face amount of the requested Letter of
Credit is less than or equal to the lesser of (A) the unused Letter of Credit
Facility and (B) the unused Borrowing Base and (iii) the Agent has received a
certificate from the Borrower stating that the applicable conditions set forth
in ARTICLE 6 have been satisfied, then BankBoston will cause the Letter of
Credit to be issued.
(c) Notice of Issuance. Promptly after the issuance of any Letter of
Credit, BankBoston shall give the Agent written or facsimile notice, or
telephonic notice confirmed promptly thereafter in writing, of the issuance of
such Letter of Credit, and the Agent shall give each Lender written or facsimile
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of such Letter of Credit.
(d) No Extension or Amendment. No Letter of Credit shall be extended or
amended unless the requirements of this SECTION 3.4 are met as though a new
Letter of Credit were being requested and issued.
SECTION 3.5. Duties of BankBoston. Any action taken or omitted to be
taken by BankBoston under or in connection with any Letter of Credit, if taken
or omitted in the absence of gross negligence or willful misconduct, shall not
result in any liability of BankBoston to any Lender or relieve any Lender of its
obligations hereunder to BankBoston. In determining whether to pay under any
Letter of Credit, BankBoston shall have no obligation to any Lender other than
to confirm that any documents required to be delivered under such Letter of
Credit in connection with such drawing have been presented and appear on their
face to comply with the requirements of such Letter of Credit.
SECTION 3.6. Payment of Reimbursement Obligations.
(a) Payment to Issuer. Notwithstanding any provisions to the contrary
in any Reimbursement Agreement, the Borrower agrees to reimburse BankBoston for
any drawings (whether partial or full) under each Letter of Credit issued by
BankBoston and agrees to pay to BankBoston the amount of all other Reimbursement
Obligations and other amounts payable to BankBoston under or in connection with
such Letter of Credit immediately when due, irrespective of any claim, set-off,
defense or other right which the Borrower may have at any time against
BankBoston or any other Person.
(b) Recovery or Avoidance of Payments. In the event any payment by or
on behalf of the Borrower with respect to any Letter of Credit (or any
Reimbursement Obligation relating thereto) received by BankBoston, or by the
Agent and distributed by the Agent to the Lenders on account of their respective
participations therein, is thereafter set aside, avoided or recovered from
BankBoston
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or the Agent in connection with any receivership, liquidation or bankruptcy
proceeding, the Lenders shall, upon demand by the Agent, pay to the Agent, for
the account of the Agent or BankBoston, their respective Commitment Percentages
of such amount set aside, avoided or recovered together with interest at the
rate required to be paid by the Agent upon the amount required to be repaid by
it.
SECTION 3.7. Participations.
(a) Purchase of Participations. Immediately upon issuance by BankBoston
of a Letter of Credit, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received without recourse or warranty, an
undivided interest and participation in such Letter of Credit, equal to such
Lender's Commitment Percentage of the face amount thereof (including, without
limitation, all obligations of the Borrower with respect thereto, other than
amounts owing to BankBoston under SECTION 5.5(B), and any security therefor or
guaranty pertaining thereto).
(b) Sharing of Letter of Credit Payments. In the event that BankBoston
makes a payment under any Letter of Credit and BankBoston shall not have been
repaid such amount pursuant to SECTION 3.6, then BankBoston shall be deemed to
have made a Non-Ratable Loan in the amount of such payment, and notwithstanding
the occurrence or continuance of a Default or Event of Default at the time of
such payment, such Non-Ratable Loan shall be subject to the provisions of
SECTION 5.11(C) and the absolute obligations of the Lenders to pay for their
respective participation interests therein.
(c) Sharing of Reimbursement Obligation Payments. Whenever BankBoston
receives a payment from or on behalf of the Borrower on account of a
Reimbursement Obligation as to which the Agent has previously received for the
account of BankBoston payment from a Lender pursuant to this SECTION 3.7,
BankBoston shall promptly pay to the Agent, for the benefit of such Lender, such
Lender's Commitment Percentage of the amount of such payment from the Borrower
in Dollars. Each such payment shall be made by BankBoston on the Business Day on
which BankBoston receives immediately available funds from the Agent pursuant to
the immediately preceding sentence, if received prior to 11:00 a.m. on such
Business Day, and otherwise on the next succeeding Business Day.
(d) Documentation. Upon the request of any Lender, the Agent shall
furnish to such Lender copies of any Letter of Credit, Reimbursement Agreement
or application for any Letter of Credit and such other documentation as may
reasonably be requested by such Lender.
(e) Obligations Irrevocable. The obligations of each Lender to make
payments to the Agent with respect to any Letter of Credit and their
participations therein pursuant to the provisions of SECTION 5.11(C) hereof or
otherwise and the obligations of the Borrower to make payments to BankBoston or
to the Agent, for the account of Lenders, shall be irrevocable, shall not be
subject to any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement (assuming, in the
case of the obligations of the Lenders to make such payments, that the Letter of
Credit has been issued in accordance with SECTION 3.4), including, without
limitation, any of the following circumstances:
(i) Any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
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(ii) The existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), any Lender,
BankBoston or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transactions
between the Borrower or any other Person and the beneficiary named in
any Letter of Credit);
(iii) Any draft, certificate or any other document presented
under the Letter of Credit upon which payment has been made in good
faith and according to its terms proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) The surrender or impairment of any Collateral or any
other security for the Secured Obligations or the performance or
observance of any of the terms of any of the Loan Documents;
(v) The occurrence of any Default or Event of Default; or
(vi) BankBoston's or the Agent's failure to deliver the notice
provided for in SECTION 3.4(C).
SECTION 3.8. Indemnification, Exoneration.
(a) Indemnification. In addition to amounts payable as elsewhere
provided in this ARTICLE 3, the Borrower agrees to protect, indemnify, pay and
save the Lenders and the Agent harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) which any Lender or the Agent may incur or be
subject to as a consequence, directly or indirectly, of
(i) the issuance of any Letter of Credit, other than as a
result of its gross negligence or willful misconduct, as determined by
a court of competent jurisdiction, or
(ii) the failure of BankBoston to honor a drawing under any
Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future DE JURE or DE FACTO governmental
authority (all such acts or omissions being hereinafter referred to
collectively as "Government Acts").
(b) Assumption of Risk by the Borrower. As among the Borrower, the
Lenders and the Agent, the Borrower assumes all risks of the acts and omissions
of, or misuse of any of the Letters of Credit by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, subject to the provisions of the applications for the issuance of
Letters of Credit, the Lenders and the Agent shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any Person in connection with
the application for and issuance of and presentation of drafts with
respect to any of the Letters of Credit, even if it should prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged;
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(ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason;
(iii) the failure of the beneficiary of any Letter of Credit
to comply duly with conditions required in order to draw upon such
Letter of Credit;
(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit
or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control
of the Lenders or the Agent, including, without limitation, any
Government Acts.
None of the foregoing shall affect, impair or prevent the vesting of any of the
Agent's rights or powers under this SECTION 3.8.
(c) Exoneration. In furtherance and extension, and not in limitation,
of the specific provisions set forth above, any action taken or omitted by the
Agent, BankBoston or any Lender under or in connection with any of the Letters
of Credit or any related certificates, if taken or omitted in good faith, shall
not result in any liability of any Lender or the Agent to the Borrower or
relieve the Borrower of any of its obligations hereunder to any such Person.
SECTION 3.9. Supporting Letter of Credit; Cash Collateral. If,
notwithstanding the provisions of SECTION 3.2(B), any Letter of Credit is
outstanding on the Termination Date, then on or prior to such Termination Date,
or in any case upon the occurrence of an Event of Default, the Borrower shall,
promptly on demand by the Agent, deposit with the Agent, for the ratable benefit
of the Lenders, with respect to each Letter of Credit then outstanding, as the
Agent shall specify, either (a) a standby letter of credit (a "Supporting Letter
of Credit") in form and substance satisfactory to the Agent, issued by an issuer
satisfactory to the Agent in its reasonable judgment in an amount equal to the
greatest amount for which such Letter of Credit may be drawn, under which
Supporting Letter of Credit the Agent is entitled to draw amounts necessary to
reimburse the Agent and the Lenders for payments made by the Agent and the
Lenders under such Letter of Credit or under any reimbursement or guaranty
agreement with respect thereto, or (b) Cash Collateral in an amount necessary to
reimburse the Agent and the Lenders for payments made by the Agent and the
Lenders under such Letter of Credit or under any reimbursement or guaranty
agreement with respect thereto. Such Supporting Letter of Credit or Cash
Collateral shall be held by the Agent for the benefit of the Lenders, as
security for, and to provide for the payment of, the Reimbursement Obligations.
In addition, the Agent may at any time after the Termination Date apply any or
all of such Cash
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Collateral to the payment of any or all of the Secured Obligations then due and
payable. At the Borrower's request, but subject to the Agent's reasonable
approval, the Agent shall invest any Cash Collateral consisting of cash or any
proceeds of Cash Collateral consisting of cash in Cash Equivalents, and any
commissions, expenses and penalties incurred by the Agent in connection with any
investment and redemption of such Cash Collateral shall be Secured Obligations
hereunder secured by the Collateral, shall bear interest at the rates provided
herein for the Loans and shall be charged to the Borrower's Loan Accounts, or,
at the Agent's option, shall be paid out of the proceeds of any earnings
received by the Agent from the investment of such Cash Collateral as provided
herein or out of such cash itself. The Agent makes no representation or warranty
as to, and shall not be responsible for, the rate of return, if any, earned on
any Cash Collateral. Any earnings on Cash Collateral shall be held as additional
Cash Collateral on the terms set forth in this SECTION 3.9.
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ARTICLE 4
TERM LOAN FACILITY
SECTION 4.1. Term Loans. Upon the terms and subject to the conditions
of, and in reliance upon the representations and warranties made under, this
Agreement, each Lender agrees severally, but not jointly, to make a Term Loan to
the Borrower on the Effective Date in a principal amount equal to such Lender's
Commitment Percentage of the excess, if any, of the Term Loan Facility over the
aggregate principal amount of "Term Loans" outstanding on the Effective Date
under and as defined in the Existing Credit Agreement.
SECTION 4.2. Manner of Borrowing Term Loans. The Borrower shall give
the Agent at least two Business Days' written notice of the occurrence of the
Effective Date. Upon receipt of such notice from the Borrower, the Agent shall
promptly notify each Lender thereof. Each Lender will make a Base Rate Loan in
the amount equal to its Commitment Percentage of the amount of such excess
referred to above available to the Agent, for the account of the Borrower, at
the office of the Agent, prior to 12:00 noon on the Effective Date in funds
immediately available to the Agent. Not later than 12:00 noon on the Effective
Date, upon satisfaction of the applicable conditions set forth in SECTIONS 6.1
and 6.2, the Agent will disburse such Term Loans on the Effective Date, in same
day funds in accordance with the terms of the letter from the Borrower to the
Agent referred to in SECTION 6.1(C)(XVII).
SECTION 4.3. Repayment of Term Loans. The principal amount of the Term
Loan is due and payable, and shall be repaid in full by the Borrower, in 17
consecutive monthly installments on successive Installment Payment Dates as
follows: 16 installments in the amount of $500,000 each and the final
installment on Termination Date in the amount of the then unpaid balance of the
Term Loan.
SECTION 4.4. Term Notes. Each Lender's Term Loan and the obligation of
the Borrower to repay such Loans shall also be evidenced by a Term Note payable
to the order of such Lender. Each such Term Note and shall be dated the
Effective Date (or the later "effective date" under any Assignment and
Acceptance) and be duly and validly executed and delivered by the Borrower.
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ARTICLE 5
GENERAL LOAN PROVISIONS
SECTION 5.1. Interest.
(a) Subject to the provisions of SECTION 5.1(C), the Borrower will pay
interest on the unpaid principal amount of each Base Rate Loan, for each day
from the day such Loan is made until such Loan is paid (whether at maturity, by
reason of acceleration, or otherwise) or is converted to a Loan bearing interest
on a different basis, at a rate per annum equal to the sum of (i) the Applicable
Margin and (ii) the Alternate Base Rate, payable monthly in arrears as it
accrues on each Interest Payment Date.
(b) Subject to the provisions of SECTION 5.1(C), the Borrower will pay
interest on the unpaid principal amount of each Eurodollar Rate Loan for the
applicable Interest Period at a rate per annum equal to the sum of (i) the
Applicable Margin and (ii) the Eurodollar Rate, payable in arrears as it accrues
on each Interest Payment Date.
(c) If the Borrower shall fail to pay when due (whether at maturity, by
reason of acceleration or otherwise) all or any portion of the principal amount
of any Loan or if there shall occur any Event of Default, then, at the election
of the Required Lenders, the Secured Obligations shall no longer bear interest
in accordance with the terms of SECTION 5.1(A), (B) OR (D), but shall bear
interest for each day from the date of such failure to pay or other Event of
Default, until such failure to pay or other Event of Default shall have been
cured or waived at a rate per annum equal to the sum of (i) the Default Margin
and (ii) the rate otherwise applicable to such Loan, payable on demand. The
interest rate provided for in the preceding sentence shall, to the extent
permitted by Applicable Law, apply to and accrue on the amount of any judgment
entered with respect to any Secured Obligation and shall continue to accrue at
such rate during any proceeding described in SECTION 13.1(G) or (H).
(d) The Borrower will, to the extent permitted by Applicable Law, pay
interest on the unpaid principal amount of any Secured Obligation that is due
and payable other than the Loans in accordance with SECTIONS 5.1(A) or (C), as
applicable, as if such Secured Obligation were a Base Rate Revolving Credit
Loan.
(e) The interest rates provided for in SECTIONS 5.1(A), (B), (C) and
(D) shall be computed on the basis of a year of 360 days and the actual number
of days elapsed. Each interest rate determined with reference to the Alternate
Base Rate shall be adjusted automatically as of the opening of business on the
effective date of each change in the Alternate Base Rate.
(f) It is not intended by the Lenders, and nothing contained in this
Agreement or the Notes shall be deemed, to establish or require the payment of a
rate of interest in excess of the maximum rate permitted by Applicable Law (the
"Maximum Rate"). If, in any month, the Effective Interest Rate, absent such
limitation, would have exceeded the Maximum Rate, then the Effective Interest
Rate for that month shall be the Maximum Rate, and, if in future months, the
Effective Interest Rate would otherwise be less than the Maximum Rate, then the
Effective Interest Rate shall remain at the Maximum Rate until such time as the
amount of interest paid hereunder equals the amount of interest which would have
been paid if the same had not been limited by the Maximum Rate. In the event
that, upon payment in full of the Secured Obligations, the total amount of
interest paid or accrued
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under the terms of this Agreement is less than the total amount of interest
which would have been paid or accrued if the Effective Interest Rate had at all
times been in effect, then the Borrower shall, to the extent permitted by
Applicable Law, pay to the Lenders an amount equal to the excess, if any, of (i)
the lesser of (A) the amount of interest which would have been charged if the
Maximum Rate had, at all times, been in effect and (B) the amount of interest
which would have accrued had the Effective Interest Rate, at all times, been in
effect and (ii) the amount of interest actually paid or accrued under this
Agreement. In the event the Lenders receive, collect or apply as interest any
sum in excess of the Maximum Rate, such excess amount shall be applied to the
reduction of the principal balance of the Secured Obligations, and if no such
principal is then outstanding, such excess or part thereof remaining, shall be
paid to the Borrower.
SECTION 5.2. Certain Fees.
(a) Origination Fee. In consideration of the Lenders' structuring and
implementing the credit facilities hereunder, the Borrower shall pay to the
Agent, for the ratable account of the Lenders, an origination fee, in an amount
equal to $275,000.
(b) Agent Fee. For administration and other services performed by the
Agent in connection with its continuing administration of this Agreement, the
Borrower shall pay to the Agent, for its own account, and not for the account of
the Lenders, an annual fee of $50,000, payable quarterly in advance beginning on
the Effective Date and continuing for so long as any Secured Obligation shall
remain outstanding or the Revolving Credit Facility shall not have been
terminated.
(c) Commitment Fee. In connection with and as consideration for the
holding available for the use of the Borrower hereunder the full amount of the
Revolving Credit Facility, the Borrower will pay a fee to the Agent, for the
ratable benefit of the Lenders, for each day from the Effective Date until the
Termination Date, in an amount equal to 0.375% per annum of the unused portion
of the Revolving Credit Facility for such day. Such fee shall be payable
quarterly in arrears on the first day of each January, April, July and October
beginning January 1, 1998, and on the date of any permanent reduction in the
Revolving Credit Facility.
(d) Letter of Credit Fees.
(i) The Borrower agrees to pay to the Agent, for the ratable
benefit of the Lenders, Letter of Credit fees at a rate per annum equal
to the Applicable Margin applicable to Eurodollar Rate Revolving Credit
Loans on each Letter of Credit from time to time outstanding during the
term of this Agreement. Such fees shall be payable to the Agent for the
ratable benefit of the Lenders in accordance with their respective
Commitment Percentages in advance on the date of issuance of each
Letter of Credit, shall be calculated according to the anticipated
average daily Letter of Credit Amount based on the stated term of each
Letter of Credit and shall be calculated based on a year of 360 days
and the actual number of days elapsed.
(ii) The Borrower agrees to pay to Agent, for the account of
BankBoston, the standard fees and charges of BankBoston for issuing,
administering, amending, renewing, paying and cancelling letters of
credit, as and when assessed.
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(e) The fees provided for in this SECTION 5.2 are charges for services and not
interest or charges for the use of money and shall be fully earned when due and
payable and shall not be subject to refund or rebate.
SECTION 5.3. Manner of Payment.
(a) Except as otherwise expressly provided in SECTION 9.1(B), each
payment (including prepayments) by the Borrower on account of the principal of
or interest on the Loans or of any other amounts payable to the Lenders under
this Agreement or any Note shall be made not later than 12:00 noon on the date
specified for payment under this Agreement to the Agent, for the account of the
Lenders, at the Agent's Office, in Dollars, in immediately available funds and
shall be made without any setoff, counterclaim or deduction whatsoever. Any
payment received after such time but before 2:00 p.m. on such day shall be
deemed a payment on such date for the purposes of SECTION 13.1, but for all
other purposes shall be deemed to have been made on the next succeeding Business
Day.
(b) The Borrower hereby irrevocably authorizes each Lender and each
Affiliate of such Lender and each participant herein to charge any account of
the Borrower maintained with such Lender or such Affiliate or participant with
such amounts as may be necessary from time to time to pay any Secured
Obligations (whether or not owed to such Lender, Affiliate or participant) which
are not paid when due.
SECTION 5.4. General. If any payment under this Agreement or any Note
shall be specified to be made on a day which is not a Business Day, it shall be
made on the next succeeding day which is a Business Day and such extension of
time shall in such case be included in computing interest, if any, in connection
with such payment.
SECTION 5.5. Loan Accounts; Statements of Account.
(a) Each Lender shall open and maintain on its books a loan account in
the Borrower's name (each, a "Loan Account" and collectively, the "Loan
Accounts"). Each such Loan Account shall show as debits thereto each Loan made
under this Agreement by such Lender to the Borrower and as credits thereto all
payments received by such Lender and applied to principal of such Loans, so that
the balance of the Loan Account at all times reflects the principal amount due
such Lender from the Borrower.
(b) The Agent shall maintain on its books a control account for the
Borrower in which shall be recorded (i) the amount of each disbursement made
hereunder, (ii) the amount of any principal or interest due or to become due
from the Borrower hereunder, and (iii) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share therein.
(c) The entries made in the accounts pursuant to SUBSECTIONS (A) and
(B) shall be PRIMA FACIE evidence, in the absence of manifest error, of the
existence and amounts of the obligations of the Borrower therein recorded and in
case of discrepancy between such accounts, in the absence of manifest error, the
accounts maintained pursuant to SUBSECTION (B) shall be controlling.
(d) The Agent will account separately to the Borrower monthly with a
statement of Loans, charges and payments made to and by the Borrower pursuant to
this Agreement, and such accounts rendered by the Agent shall be deemed final,
binding and conclusive, save for manifest error, unless
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the Agent is notified by the Borrower in writing to the contrary within 30 days
of the date the account to the Borrower was so rendered. Such notice by the
Borrower shall be deemed an objection to only those items specifically objected
to therein. Failure of the Agent to render such account shall in no way affect
the rights of the Agent or of the Lenders hereunder.
SECTION 5.6. Termination of Agreement. Subject to the provisions of
SECTION 5.10, the Borrower shall have the right, at any time, to terminate this
Agreement upon not less than 30 Business Days' prior written notice of its
intention to terminate this Agreement, which notice shall specify the effective
date of such termination. Upon receipt of such notice, the Agent shall promptly
notify each Lender thereof. On the date specified in such notice, such
termination shall be effected, PROVIDED, that the Borrower shall, on or prior to
such date, pay to the Agent, for the account of the Lenders, in same day funds,
an amount equal to all Secured Obligations then outstanding, including, without
limitation, all (i) accrued interest thereon, (ii) all accrued fees provided for
hereunder, and (iii) any amounts payable to the Lender pursuant to SECTIONS
5.11, 5.12, 16.2, 16.3 and 16.14, and, in addition thereto, shall deliver to the
Agent, in respect of each outstanding Letter of Credit, either the Supporting
Letter of Credit or the Cash Collateral as provided in SECTION 3.9. Following a
notice of termination as provided for in this SECTION 5.6 and upon payment in
full of the amounts specified in this SECTION 5.6, this Agreement shall be
terminated and the Agent, the Lenders and the Borrower shall have no further
obligations to any other party hereto except for the obligations to the Agent
and the Lenders pursuant to SECTION 16.14 hereof.
SECTION 5.7. Making of Loans.
(a) Nature of Obligations of Lenders to Make Loans. The obligations of
the Lenders under this Agreement to make the Loans are several and are not joint
or joint and several.
(b) Assumption by Agent. Subject to the provisions of SECTION 5.8 and
notwithstanding the occurrence or continuance of a Default or Event of Default
or other failure of any condition to the making of Loans hereunder subsequent to
the Loans to be made on the Effective Date, unless the Agent shall have received
notice from a Lender in accordance with the provisions of SECTION 5.7(C) prior
to a proposed borrowing date that such Lender will not make available to the
Agent such Lender's Revolving Credit Loan as part of the Borrowing to be made on
such date, the Agent may assume that such Lender will make such Loan available
to the Agent in accordance with SECTION 2.2(A), and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Lender shall not make such Loan
available to the Agent, such Lender and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount, together with interest
thereon for each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Agent at the Effective Interest Rate
or, if lower, subject to SECTION 5.1(F), the Maximum Rate. If such Lender shall
repay to the Agent such corresponding amount, the amount so repaid shall
constitute such Lender's Revolving Credit Loan made on such date for purposes of
this Agreement. The failure of any Lender to make its Commitment Percentage of
any Loan available shall not (without regard to whether a Borrower shall have
returned the amount thereof to the Agent in accordance with this SECTION 5.7)
relieve it or any other Lender of its obligation, if any, hereunder to make its
Loan available as part of such Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make its Loan available such Borrowing.
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(c) Delegation of Authority to Agent. Without limiting the generality
of SECTION 15.1, each Lender expressly authorizes the Agent to determine on
behalf of such Lender (i) any reduction or increase of advance rates applicable
to the Borrowing Base, so long as such advance rates do not at any time exceed
the rates set forth in the Borrowing Base definition, (ii) the creation or
elimination of any reserves (other than the Letter of Credit Reserve) against
the Revolving Credit Facility and the Borrowing Base and (iii) whether or not
Inventory or Receivables shall be deemed to constitute Eligible Inventory or
Eligible Receivables. Such authorization may be withdrawn by the Required
Lenders by giving the Agent written notice of such withdrawal signed by the
Required Lenders; PROVIDED, HOWEVER, that unless otherwise agreed by the Agent
such withdrawal of authorization shall not become effective until the 30th
Business Day after receipt of such notice by the Agent. Thereafter, the Required
Lenders shall jointly instruct the Agent in writing regarding such matters with
such frequency as the Required Lenders shall jointly determine. Unless and until
the Agent shall have received written notice from the Required Lenders as to the
existence of a Default, an Event of Default or some other circumstance which
would relieve the Lenders of their respective obligations to make Loans
hereunder, which notice shall be in writing and shall be signed by the Required
Lenders and shall expressly state that the Required Lenders do not intend to
make available to the Agent such Lenders' ratable share of Loans made after the
effective date of such notice, the Agent shall be entitled to continue to make
the assumptions described in SECTION 5.7(B). After receipt of the notice
described in the preceding sentence, which shall become effective on the third
Business Day after receipt of such notice by the Agent unless otherwise agreed
by the Agent, the Agent shall be entitled to make the assumptions described in
SECTION 5.7(B) as to any Loans as to which it has not received a written notice
to the contrary prior to 11:00 a.m. on the Business Day next preceding the day
on which the Loan is to be made. The Agent shall not be required to make any
Loan as to which it shall have received notice by a Lender of such Lender's
intention not to make its ratable portion of such Loan available to the Agent.
Any withdrawal of authorization under this SECTION 5.7(C) shall not affect the
validity of any Loans made prior to the effectiveness thereof.
SECTION 5.8. Settlement Among Lenders.
(a) Term Loans. The Agent shall pay to each Lender on each Interest
Payment Date or Installment Payment Date, as the case may be, its ratable share,
based on the principal amount of the Term Loans owing to such Lender, of all
payments received by the Agent hereunder in immediately available funds in
respect of the principal of, or interest on, the Term Loans, net of any amounts
payable by such Lender to the Agent, by wire transfer of same day funds.
(b) Revolving Credit Loans. It is agreed that each Lender's Net
Outstandings are intended by the Lenders to be equal at all times to such
Lender's Commitment Percentage of the aggregate principal amount of all
Revolving Credit Loans outstanding. Notwithstanding such agreement, the several
and not joint obligation of each Lender to make Revolving Credit Loans in
accordance with the terms of this Agreement ratably in accordance with such
Lender's Commitment Percentage and each Lender's right to receive its ratable
share of principal payments on Revolving Credit Loans in accordance with its
Commitment Percentage, the Lenders agree that in order to facilitate the
administration of this Agreement and the Loan Documents that settlement among
them may take place on a periodic basis in accordance with the provisions of
this SECTION 5.8.
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(c) Settlement Procedures as to Revolving Credit Loans. Settlement
among the Lenders as to Revolving Credit Loans may occur periodically on
Settlement Dates determined from time to time by the Agent, which may occur
before or after the occurrence or during the continuance of a Default or Event
of Default and whether or not all of the conditions set forth in SECTION 6.2
have been met. On each Settlement Date payments shall be made by or to
BankBoston and the other Lenders (through the Agent) in accordance with the
Settlement Report delivered by the Agent in respect of such Settlement Date so
that as of each Settlement Date, and after giving effect to the transactions to
take place on such Settlement Date, each Lender's Net Outstandings shall equal
such Lender's Commitment Percentage of the Revolving Credit Loans outstanding.
Between Settlement Dates, the Agent shall request and BankBoston may (but shall
not be obligated to) advance to the Borrower out of BankBoston's own funds, the
entire principal amount of any Revolving Credit Loan requested or deemed
requested pursuant to SECTION 2.2(A) (any such Revolving Credit Loan being
referred to as a "Non-Ratable Loan"). The making of each Non-Ratable Loan by
BankBoston shall be deemed to be a purchase by BankBoston of a 100%
participation in each other Lender's Commitment Percentage of the amount of such
Non-Ratable Loan. All payments of principal, interest and any other amount with
respect to such Non-Ratable Loan shall be payable to and received by the Agent
for the account of BankBoston. Upon demand by BankBoston, with notice thereof to
the Agent, each other Lender shall pay to BankBoston, as the repurchase of such
participation, an amount equal to 100% of such Lender's Commitment Percentage of
the principal amount of such Non-Ratable Loan. Any payments received by the
Agent between Settlement Dates which in accordance with the terms of this
Agreement are to be applied to the reduction of the outstanding principal
balance of Revolving Credit Loans, shall be paid over to and retained by
BankBoston for such application, and such payment to and retention by BankBoston
shall be deemed, to the extent of each other Lender's Commitment Percentage of
such payment, to be a purchase by each such other Lender of a participation in
the Revolving Credit Loans (including the repurchase of participations in
Non-Ratable Loans) held by BankBoston. Upon demand by another Lender, with
notice thereof to the Agent, BankBoston shall pay to the Agent, for the account
of such other Lender, as a repurchase of such participation, an amount equal to
such other Lender's Commitment Percentage of any such amounts (after application
thereof to the repurchase of any participations of BankBoston in such other
Lender's Commitment Percentage of any Non-Ratable Loans) paid only to BankBoston
by the Agent.
(d) Settlement of Other Secured Obligations. All other amounts received
by the Agent on account of, or applied by the Agent to the payment of, any
Secured Obligation owed to the Lenders (including, without limitation, fees
payable to the Lenders pursuant to SECTIONS 5.2(A), (C) and (D) and proceeds
from the sale of, or other realization upon, all or any part of the Collateral
following an Event of Default) that are received by the Agent on or prior to
1:00 p.m. on a Business Day will be paid by the Agent to each Lender on the same
Business Day, and any such amounts that are received by the Agent after 1:00
p.m. will be paid by the Agent to each Lender on the following Business Day.
Unless otherwise stated herein, the Agent shall distribute fees payable to the
Lenders pursuant to SECTIONS 5.2(A), (C) and (D) ratably to the Lenders based on
each Lender's Commitment Percentage and shall distribute proceeds from the sale
of, or other realization upon, all or any part of the Collateral following an
Event of Default ratably to the Lenders based on the amount of the Secured
Obligations then owing to each Lender.
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SECTION 5.9. Mandatory Prepayments.
(a) Prepayments from Asset Dispositions. Immediately upon receipt by
the Borrower or any of its Subsidiaries of the Net Proceeds of any Asset
Disposition, the Borrower shall apply such Net Proceeds in prepayment of the
Loans as provided in SECTION 5.9(C); provided, however, that the Borrower shall
not be required to make such prepayment to the extent that the Net Proceeds from
Asset Dispositions during any Fiscal Quarter do not exceed $125,000 or during
any Fiscal Year do not exceed, in the aggregate, $500,000. Concurrently with the
making of any such payment, the Borrower shall deliver to the Agent a
certificate of the Borrower's Financial Officer demonstrating the calculations
of the amount required to be paid.
(b) Prepayments from Equity Offerings. In the event that at any time
after the Effective Date, the Borrower issues capital stock or other securities
or receives an additional capital contribution in respect of existing capital
stock or other securities, (other than in connection with the issuance or sale
of shares to employees of the Borrower pursuant to any stock ownership or profit
sharing plan) not later than the third Business Day following the date of
receipt of the proceeds from such issuance, the Borrower shall apply such
proceeds, net of underwriting discounts and commissions and other reasonable
costs associated therewith, in prepayment of the Loans as provided in SECTION
5.9(C).
(c) Application of Proceeds of Mandatory Prepayments. All prepayments
pursuant to this SECTION 5.9 shall be applied first to the outstanding principal
of the Term Loan to the extent thereof and second to the outstanding Revolving
Credit Loans to the extent thereof, with any excess to be deposited with the
Agent to be held as Cash Collateral for the Secured Obligations and applied by
the Agent from time to time to outstanding Revolving Credit Loans promptly upon
the making of such Revolving Credit Loans or, after the Termination Date, to any
of the Secured Obligations in such manner as the Agent shall determine in its
sole discretion, provided that the Net Proceeds from the sale of Real Estate
located in South Carolina, held for sale on the Agreement Date shall be (but
without any permanent reduction to the Revolving Credit Facility unless
otherwise directed by the Borrower) applied to the outstanding principal of the
Revolving Credit Loans. All prepayments of the Term Loans shall be applied to
the principal installments payable thereon in inverse order of maturity.
SECTION 5.10. Optional Prepayments; Reduction of Revolving Credit
Facility.
(a) Term Loan. The Borrower shall have the right at any time and from
time to time, upon at least five days' prior written notice to the Agent, to
prepay the Term Loan in whole or in part on any Business Day. Each partial
prepayment of the Term Loan shall be in a principal amount equal to $500,000 or
any integral multiple thereof and shall be applied to the principal installments
of the Term Loan in the inverse order of their maturities. On the prepayment
date, the Borrower shall pay interest on the amount prepaid, accrued to the
prepayment date and any prepayment fees due by the Borrower pursuant to SECTION
5.11. Any notice of prepayment given by the Borrower hereunder shall be
irrevocable, and the amount to be prepaid (including accrued interest and
prepayment fees) shall be made on the date specified by such notice.
(b) Revolving Credit Loans. The principal amount of each Revolving
Credit Loan outstanding to the Borrower may be prepaid in whole at any time or
in part from time to time by the
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Borrowers, upon written notice to the Agent at least (i) one Business Day, for
repayment of a Base Rate Revolving Credit Loan, and (ii) three Business Days,
for prepayment of a Eurodollar Rate Revolving Credit Loan, prior to such the
date of such prepayment. Such notice shall specify the Loan to be prepaid, the
date of prepayment (which, in the case of a Eurodollar Rate Loan, shall be the
last day of the applicable Interest Period) on the principal amount to be
prepaid, and if such notice is given, it shall be irrevocable and such
prepayment (including accrued interest and prepayment fees) shall be made on the
date specified by such notice. On the prepayment date, the Borrower shall pay
interest on the amount prepaid, accrued to the prepayment date, and any
prepayment fees due by the Borrower pursuant to SECTION 5.11.
(c) Reduction of Revolving Credit Facility.
(i) The Borrower shall have the right, at any time and from
time to time, upon at least three Business Days' prior irrevocable
written notice to Agent, to terminate or reduce permanently all or a
portion of the unused Revolving Credit Facility; PROVIDED, HOWEVER,
that any such partial reduction shall be made in increments of $500,000
or an integral multiple thereof and shall not reduce the Revolving
Credit Facility below the amount of the aggregate Letter of Credit
Obligations. As of the date of termination or reduction set forth in
such notice and upon payment of any fee payable pursuant to SECTION
5.11, the Revolving Credit Facility shall be permanently reduced to the
amount stated in the Borrower's notice for all purposes herein (and
each Lender's Commitment shall also be reduced by such Lender's
Commitment Percentage of the amount of such reduction).
(ii) The amount of the Revolving Credit Facility shall be
automatically reduced to zero on the Termination Date.
(iii) The Revolving Credit Facility or any portion thereof
terminated or reduced pursuant to this SECTION 5.10 may not be
reinstated.
SECTION 5.11. Prepayment Fee. If the Borrower prepays the Loans in
whole or in part or effects a permanent reduction of the Revolving Credit
Facility prior to the Termination Date, for any reason, the Borrower shall pay
to the Agent for the ratable benefit of the Lenders on such date of prepayment
or reduction, as liquidated damages and compensation for the costs of making
funds available to the Borrower under this Agreement, and not as a penalty, an
amount equal to 1% of (a) in the case of a prepayment in part or reduction, the
principal amount of such prepayment or amount of such permanent reduction or,
(b) in the case of a prepayment in full, the sum of (i) the aggregate
outstanding principal amount of the Term Loans PLUS (ii) the Revolving Credit
Facility then in effect.
SECTION 5.12. Payments Not at End of Interest Period; Failure to
Borrow. If for any reason any payment of principal with respect to any
Eurodollar Rate Loan is made on any day prior to the last day of the Interest
Period applicable to such Eurodollar Rate Loan or, after having given a Notice
of Borrowing with respect to any Eurodollar Rate Revolving Credit Loan or a
Notice of Conversion or Continuation with respect to any Loan to be continued as
or converted into a Eurodollar Rate Loan, such Loan is not made or is not
continued as or converted into a Eurodollar Rate Loan due to the Borrower's
failure to borrow or to fulfill the applicable conditions set forth in
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ARTICLE 6, the Borrower shall pay to each Lender, in addition to any amounts
that may be due under SECTION 5.11, an amount (if a positive number) computed
pursuant to the following formula:
L = (R - T) x P x D
----------------
360
L = amount payable
R = interest rate applicable to the Eurodollar Rate Loan
unborrowed or prepaid
T = effective interest rate per annum at which any
readily marketable bonds or other obligations of the
United States, selected at the Agent's sole
discretion, maturing on or near the last day of the
then applicable or requested Interest Period for such
Loan and in approximately the same amount as such
Loan, can be purchased by such Lender on the day of
such payment of principal or failure to borrow
P = the amount of principal paid or the amount of the
requested Loan
D = the number of days remaining in the Interest Period
as of the date of such payment or the number of days
in the requested Interest Period
The Borrower shall pay such amount upon presentation by the Agent of a statement
setting forth the amount and the Agent's calculation thereof pursuant hereto,
which statement shall be deemed true and correct absent manifest error.
SECTION 5.13. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to the Lenders under this ARTICLE 5 shall be
made as though each Lender had actually funded or committed to fund its
Eurodollar Rate Loans through the purchase of an underlying deposit in an amount
equal to the amount of such ratable share and having a maturity comparable to
the relevant Interest Period for such Eurodollar Rate Loan; PROVIDED, HOWEVER,
each Lender may fund its Eurodollar Rate Loans in any manner it deems fit and
the foregoing assumption shall be utilized only for the calculation of amounts
payable under this ARTICLE 5.
SECTION 5.14. Notice of Conversion or Continuation. Whenever the Borrower
desires, subject to the provisions of SECTION 5.7, to convert an outstanding
Base Rate Loan into a Eurodollar Rate Loan or to continue all or a portion of an
outstanding Eurodollar Rate Revolving Credit Loan or Eurodollar Rate Term Loan
for a subsequent Interest Period, the Borrower shall notify the Agent in writing
(which notice shall be irrevocable) by telecopy not later than 11:30 a.m. on the
date two Business Days before the day on which such proposed conversion or
continuation is to be effective (and such effective date of any continuation
shall be the last day of the Interest Period for such Eurodollar Rate Loan).
Each such notice (a "Notice of Conversion or Continuation") shall (i) identify
the Loan to be converted or continued, the aggregate outstanding principal
balance thereof and, if a Eurodollar Rate Loan, the last day of the Interest
Period applicable to such Loan, (ii) specify the effective date of such
conversion or continuation, (iii) specify the principal amount of such Loan to
be converted or continued, and (iv) the Interest Period to be applicable to the
Eurodollar Rate Loan as converted or continued, and shall be immediately
followed by a written confirmation thereof by the Borrower in a form acceptable
to the Agent, PROVIDED that if such written confirmation differs in any respect
from the action taken by the Lenders, the records of the Agent shall control
absent manifest error.
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SECTION 5.15. Conversion or Continuation. Provided that no Event of
Default shall have occurred and be continuing (but subject to the provisions of
SECTION 5.14), the Borrower may request that all or any part of any outstanding
Base Rate Loan be converted into a Eurodollar Rate Loan or Loans or (b)
Eurodollar Rate Loan be continued as a Eurodollar Rate Loan or Loans, in the
same aggregate principal amount, on any Business Day (which, in the case of
continuation of a Eurodollar Rate Loan, shall be the last day of the Interest
Period applicable thereto), upon notice (which notice shall be irrevocable)
given in accordance with SECTION 5.14, PROVIDED that nothing in this ARTICLE 5
shall be construed to permit the conversion of a Revolving Credit Loan to a Term
Loan or vice versa.
SECTION 5.16. Duration of Interest Periods; Maximum Number of
Eurodollar Rate Loans; Minimum Increments.
(a) Subject to the provisions of the definition "Interest Period", the
duration of each Interest Period shall be as specified in the applicable Notice
of Borrowing or Notice of Conversion or Continuation. The Borrower may elect a
subsequent Interest Period to be applicable to any Eurodollar Rate Loan by
giving a Notice of Conversion or Continuation with respect to such Loan in
accordance with SECTION 5.14.
(b) If the Agent does not receive a notice of election in accordance
with SECTION 5.14 with respect to the continuation of a Eurodollar Rate Loan
within the applicable time limits specified in said SECTION 5.14, or if, when
such notice must be given, an Event of Default exists or Eurodollar Rate Loans
are not available, the Borrower shall be deemed to have elected to convert such
Eurodollar Rate Loan in whole into a Base Rate Loan on the last day of the
Interest Period therefor.
(c) Notwithstanding the foregoing, the Borrower may not select an
Interest Period that would end, but for the provisions of the definition
"Interest Period," after the Termination Date.
(d) In no event shall there be more than 10 Eurodollar Rate Loans
outstanding hereunder at any time. For the purpose of this SUBSECTION (D), each
Eurodollar Rate Revolving Credit Loan and each Eurodollar Rate Term Loan having
a distinct Interest Period shall be deemed to be a separate Loan hereunder.
(e) Each Eurodollar Rate Loan shall be in a minimum amount of $500,000.
SECTION 5.17. Changed Circumstances.
(a) If the introduction of or any change in or in the interpretation of
(in each case, after the date hereof) any law or regulation makes it unlawful,
or any Governmental Authority asserts, after the date hereof, that it is
unlawful, for any Lender to perform its obligations hereunder to make Eurodollar
Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender
shall notify the Agent of such event and the Agent shall notify the Borrower of
such event, and the right of the Borrower to select Eurodollar Rate Loans for
any subsequent Interest Period or in connection with any subsequent conversion
of any Loan shall be suspended until the Agent shall notify the Borrower that
the circumstances causing such suspension no longer exist, and the Borrower
shall forthwith prepay in full all Eurodollar Rate Revolving Credit Loans then
outstanding and shall convert each Eurodollar Rate Term Loan into a Base Rate
Term Loan, and shall pay all interest accrued thereon through the date of such
prepayment or conversion, unless the Borrower, within three Business Days
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after such notice from the Agent, requests the conversion of all Eurodollar Rate
Loans then outstanding into Base Rate Loans; PROVIDED, that if the date of such
repayment or proposed conversion is not the last day of the Interest Period
applicable to such Eurodollar Rate Loans, the Borrower shall also pay any amount
due pursuant to SECTION 5.12.
(b) If the Agent shall, at least one Business Day before the date of
any requested Revolving Credit Loan or the effective date of any conversion or
continuation of an existing Loan to be made or continued as or converted into a
Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to
be converted or continued, a "Pending Loan"), notify the Borrower that the
Eurodollar Rate will not adequately reflect the cost to the Lenders of making or
funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank
Offered Rate is not determinable from any interest rate reporting service of
recognized standing, then the right of the Borrower to select the Eurodollar
Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in
connection with any subsequent conversion or continuation of any Loan shall be
suspended until the Agent shall notify the Borrower that the circumstances
causing such suspension no longer exist, and each Loan comprising each Pending
Loan and each such subsequent Loan requested to be made, continued or converted
shall be made or continued as or converted into a Base Rate Loan.
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ARTICLE 6
CONDITIONS PRECEDENT
SECTION 6.1. Conditions Precedent to Revolving Credit Loans and Term Loans.
Notwithstanding any other provision of this Agreement, the effectiveness of this
Agreement and the obligations of the Lenders to make Loans hereunder is subject
to the satisfaction of each of the following conditions, prior to or
contemporaneously with the making of the first such Loans hereunder:
(a) Fees. The Borrower shall have paid all of the fees payable on the
Effective Date referred to herein and all additional fees due in accordance with
the terms of this Agreement.
(b) Security Interests. The Agent shall have received satisfactory
evidence that the Agent (for the benefit of Lenders) has a valid and perfected
first priority security interest as of such date in all of the Collateral,
subject only to Permitted Liens.
(c) Closing Documents. The Agent shall have received each of the
following documents, all of which shall be satisfactory in form and substance to
the Agent and its special counsel and to the Lenders:
(i) certified copies of the articles or certificate of
incorporation and bylaws of the Borrower as in effect on the Effective
Date,
(ii) certified copies of all corporate action, including
shareholder approval, if necessary, taken by the Borrower to authorize
the execution, delivery and performance of this Agreement, the other
Loan Documents, and the borrowings under this Agreement,
(iii) certificates of incumbency and specimen signatures with
respect to each of the officers of the Borrower authorized to execute
and deliver this Agreement and the Loan Documents on behalf of the
Borrower or other Person executing any document, certificate or
instrument to be delivered in connection with this Agreement or the
Loan Documents and, in the case of the Borrower, to request borrowings
under this Agreement,
(iv) a certificate evidencing the good standing of the
Borrower in the jurisdiction of its incorporation and in each other
jurisdiction in which it is required to be qualified as a foreign
corporation to transact its business as presently conducted,
(v) copies of all financial statements referred to in SECTION
7.1(O) and meeting the requirements thereof,
(vi) a signed opinion of Winston & Strawn, counsel for the
Borrower, and of such local counsel for the Borrower as may be
required, opining as to such matters in connection with the
transactions contemplated by this Agreement as the Agent or its special
counsel may reasonably request,
(vii) the Financing Statements duly executed and delivered by
the Borrower and acknowledgment copies evidencing the filing of such
Financing Statements in each jurisdiction where such filing may be
necessary or appropriate to perfect the Security Interest,
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(viii) a certification from the principal officers of the
Borrower as to such factual matters as shall be reasonably requested by
the Agent,
(ix) certificates or binders of insurance relating to each of
the policies of insurance covering any of the Collateral together with
loss payable clauses which comply with the terms of SECTION 9.8,
(x) a certificate of the President or a Financial Officer of
the Borrower stating that, to the best of his knowledge and based on an
examination sufficient to enable him to make an informed statement,
(A) all of the representations and warranties made or
deemed to be made under this Agreement are true and correct as
of the Effective Date, after giving effect to the Revolving
Credit Loans and the Term Loans to be made at such time and
the application of the proceeds thereof, and
(B) no Default or Event of Default exists,
(xi) a Borrowing Base Certificate, a Schedule of Inventory and
a Schedule of Receivables, prepared as of the Effective Date,
(xii) a Mortgage Modification with respect to the Mortgages
affecting Real Estate located in Jefferson, Georgia and Haw River,
Fayetteville and Rocky Mount, North Carolina, duly executed and
delivered by the Borrower, in form for recording in the appropriate
jurisdiction,
(xiii) a fully paid endorsement (or commitment to issue the
same, subject to no exceptions which the Agent has not approved in
writing), to each policy of mortgagee title insurance in effect with
respect to the Mortgages to be modified, insuring that each such
Mortgage, as modified by the related Mortgage Modification and after
giving effect to the execution and delivery of this Agreement, the
Notes and the other Loan Documents and the recording of such Mortgage
Modification, continues to create a valid first lien on, and security
title to, all Real Estate described therein, with no exceptions that
the Agent has not approved in writing,
(xiv) such materials and information concerning the Real
Estate as the Agent may reasonably request, including owner's
affidavits,
(xv) landlord's waiver and consent agreements duly executed on
behalf of each landlord of Real Estate and any other real property on
which any Collateral is located,
(xvi) Agency Account Agreements, each duly executed by the
Borrower and the Clearing Bank party thereto,
(xvii) a letter, conforming to the requirements of SECTION
10.8, from the Borrower to the Agent requesting the initial Revolving
Credit Loans and the Term Loan to be made on the Effective Date and
specifying the method of disbursement,
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(xviii) the Patent Assignment and Trademark Assignment, each
duly executed and delivered by the Borrower.
(xix) copies of each of the other Loan Documents duly executed
by the parties thereto, together with evidence satisfactory to the
Agent of the due authorization and binding effect of each such Loan
Document on such party, and
(xx) such other documents and instruments as the Agent or any
Lender may reasonably request.
(d) Notes. Each Lender shall have received a Revolving Credit Note and
a Term Note duly executed and delivered by the Borrower, complying with the
terms of SECTIONS 2.4 and 4.4, as applicable.
(e) Other Security Documents. The Agent shall have received each other
Security Document, duly executed and delivered by the Borrower.
(f) Availability. The Agent shall be provided with evidence
satisfactory to it, confirmed by a certificate of a Financial Officer of the
Borrower, that as of the Effective Date the Availability is not less than
$2,000,000.
(g) No Injunctions, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or legislative body to enjoin, restrain,
or prohibit, or to obtain damages in respect of, or which is related to or
arises out of this Agreement or the consummation of the transactions
contemplated hereby or which, in the Lenders' reasonable discretion, would make
it inadvisable to consummate the transactions contemplated by this Agreement.
(h) Material Adverse Change. As of the Effective Date, there shall not
have occurred any change which is materially adverse, in the Lenders' sole
discretion, to the assets, liabilities, businesses, operations, condition
(financial or otherwise) or prospects of the Borrower from those presented by
the audited financial statements of the Borrower described in SECTION 7.1(O).
SECTION 6.2. All Loans; Letters of Credit. At the time of making of each
Loan, including the initial Revolving Credit Loan, the Term Loans and all
subsequent Loans, and the issuance of each Letter of Credit:
(a) all of the representations and warranties made or deemed to be made
under this Agreement shall be true and correct at such time both with and
without giving effect to the Loans to be made at such time and the application
of the proceeds thereof, and
(b) the corporate actions of the Borrower referred to in SECTION
6.1(C)(II) shall remain in full force and effect and the incumbency of officers
shall be as stated in the certificates of incumbency delivered pursuant to
SECTION 6.1(C)(III) or as subsequently modified and reflected in a certificate
of incumbency delivered to the Agent.
Each request or deemed request for any borrowing hereunder shall be deemed to be
a certification by the Borrower to the Agent and the Lenders as to the matters
set forth in SECTION 6.2(A) and (B) and the Agent may, without waiving either
condition, consider the conditions specified in SECTIONS 6.2(A) and
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(B) fulfilled and a representation by the Borrower to such effect made, if no
written notice to the contrary is received by the Agent prior to the making of
the Loan then to be made.
SECTION 6.3. Effect of Effectiveness. From and after the Effective
Date, all references in the Existing Credit Agreement or any other related Loan
Document (as defined in the Existing Credit Agreement) to the Existing Credit
Agreement, including the references "hereof," "hereunder" and other similar
words referring to the Existing Credit Agreement, shall mean and be references
to the Existing Credit Agreement as amended and restated hereby.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 7.1. Representations and Warranties. The Borrower represents
and warrants to the Agent and to the Lenders as follows:
(a) Organization; Power; Qualification. The Borrower and each of its
Subsidiaries is a corporation, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, having the power
and authority to own its properties and to carry on its business as now being
and hereafter proposed to be conducted and is duly qualified and authorized to
do business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization. The
jurisdictions in which each of the Borrower and each of its Subsidiaries is
qualified to do business as a foreign corporation are listed on SCHEDULE 7.1(A).
(b) Capitalization; Shareholder Agreements. The outstanding capital
stock of the Borrower has been duly and validly issued and is fully paid and
nonassessable, and the number and owners of such shares of capital stock of the
Borrower are set forth on SCHEDULE 7.1(B). The issuance and sale of the
Borrower's capital stock have been registered or qualified under applicable
federal and state securities laws or are exempt therefrom. Except as set forth
on SCHEDULE 7.1(B), there are no shareholders agreements, options, subscription
agreements or other agreements or understandings to which the Borrower is a
party in effect with respect to the capital stock of the Borrower, including,
without limitation, agreements providing for special voting requirements or
arrangements for approval of corporate actions or other matters relating to
corporate governance or restrictions on share transfer or providing for the
issuance of any securities convertible into shares of the capital stock of the
Borrower, any warrants or other rights to acquire any shares or securities
convertible into such shares, or any agreement that obligates the Borrower,
either by its terms or at the election of any other Person, to repurchase such
shares under any circumstances.
(c) Subordinated Debt. The Borrower has the corporate power and
authority to incur the Subordinated Debt. The issuance and sale of the
Subordinated Debt have been registered or qualified under applicable federal and
state securities laws or are exempt therefrom. The Subordinated Debt is the
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms (including those pertaining to
subordination). The Borrower has delivered to the Agent a complete and correct
copy of all documents evidencing or relating to the Subordinated Debt, and each
of the representations and warranties given by the Borrower therein is true and
correct in all material respects. The subordination provisions of the
Subordinated Debt will be enforceable against the respective holders thereof by
the holder of any Note which has not effectively waived the benefits thereof.
All of the Secured Obligations constitute senior Debt entitled to the benefits
of subordination created by the Subordinated Debt.
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(d) Subsidiaries. SCHEDULE 7.1(D) correctly sets forth the name of each
Subsidiary of the Borrower, its jurisdiction of incorporation, the name of its
immediate parent or parents, and the percentage of its issued and outstanding
securities owned by the Borrower or any other Subsidiary of the Borrower and
indicating whether such Subsidiary is a Consolidated Subsidiary. Except as set
forth on SCHEDULE 7.1(D),
(i) no Subsidiary of the Borrower has issued any securities
convertible into shares of such Subsidiary's capital stock or any
options, warrants or other rights to acquire any shares or securities
convertible into such shares,
(ii) the outstanding stock and securities of each Subsidiary
of the Borrower are owned by the Borrower or a Wholly Owned Subsidiary
of the Borrower, or by the Borrower and one or more of its Wholly Owned
Subsidiaries, free and clear of all Liens, warrants, options and rights
of others of any kind whatsoever, and
(iii) the Borrower has no Subsidiaries.
The outstanding capital stock of each Subsidiary of the Borrower has been duly
and validly issued and is fully paid and nonassessable by the issuer, and the
number and owners of the shares of such capital stock are set forth on SCHEDULE
7.1(D).
(e) Authorization of Agreement, Notes, Loan Documents and Borrowing.
The Borrower has the right and power, and has taken all necessary action to
authorize it, to execute, deliver and perform this Agreement and each of the
Loan Documents in accordance with their respective terms. This Agreement and
each of the Loan Documents have been duly executed and delivered by the duly
authorized officers of the Borrower and each is, or each when executed and
delivered in accordance with this Agreement will be, a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms.
(f) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, Etc. Except as set forth on SCHEDULE 7.1(F), the execution, delivery and
performance of this Agreement and each of the Loan Documents in accordance with
their respective terms and the borrowings hereunder do not and will not, by the
passage of time, the giving of notice or otherwise,
(iv) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its Subsidiaries,
(v) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or by-laws
of the Borrower or any of its Subsidiaries,
(vi) conflict with, result in a breach of or constitute a
default under any material provisions of any indenture, agreement or
other instrument to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower, any of its Subsidiaries or any of the
Borrower's or such Subsidiaries' property may be bound or any
Governmental Approval relating to the Borrower or any of its
Subsidiaries, or
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(vii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter
acquired by the Borrower other than the Security Interest.
(g) Business. The Borrower is engaged principally in the business of
manufacturing synthetics and synthetic blend fabrics.
(h) Compliance with Law; Governmental Approvals.
(i) Except as set forth in SCHEDULE 7.1(H), the Borrower and
each of its Subsidiaries
(A) has all Governmental Approvals, including permits
relating to federal, state and local Environmental Laws,
ordinances and regulations, required by any Applicable Law for
it to conduct its business, each of which is in full force and
effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the knowledge of the
Borrower, threatened attack by direct or collateral
proceeding, and
(B) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable
Laws relating to it, including, without being limited to, all
Environmental Laws and all occupational health and safety laws
applicable to the Borrower, any of its Subsidiaries or their
respective properties,
except for instances of noncompliance which would not, singly or in the
aggregate, cause a Default or Event of Default or have a Materially
Adverse Effect on the Borrower or any of its Subsidiaries and in
respect of which reserves in respect of the Borrower's or such
Subsidiary's reasonably anticipated liability have been established on
the books of the Borrower or such Subsidiary, as applicable.
(ii) Without limiting the generality of the above, except with
respect to matters which could not reasonably be expected to have,
singly or in the aggregate, a Materially Adverse Effect on the Borrower
or any of its Subsidiaries:
(A) the operations of the Borrower and each of its
Subsidiaries comply in all material respects with all
applicable environmental, health and safety requirements of
Applicable Law;
(B) the Borrower and each of its Subsidiaries has
obtained all environmental, health and safety permits
necessary for its operation, and all such permits are in good
standing and the Borrower and each of its Subsidiaries is in
compliance in all material respects with all terms and
conditions of such permits;
(C) neither the Borrower nor any of its Subsidiaries
nor any of their respective present or past property or
operations are subject to any order from or agreement with any
public authority or private party respecting (x) any
environmental, health or safety requirements of Applicable
Law, (y) any Remedial Action, or (z) any
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liabilities and costs arising from the Release or threatened
Release of a Contaminant into the environment;
(D) none of the operations of the Borrower or of any
of its Subsidiaries is subject to any judicial or
administrative proceeding alleging a violation of any
environmental, health or safety requirement of Applicable Law;
(E) none of the present or past operations of the
Borrower or any of its Subsidiaries is the subject of any
investigation by any public authority evaluating whether any
Remedial Action is needed to respond to a Release or
threatened Release of a Contaminant into the environment;
(F) neither the Borrower nor any of its Subsidiaries
has filed any notice under any requirement of Applicable Law
indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 CFR Part 261
or any state equivalent;
(G) neither the Borrower nor any of its Subsidiaries
has filed any notice under any requirement of Applicable Law
reporting a Release of a Contaminant into the environment;
(H) except in compliance in all material respects
with applicable Environmental Laws, during the course of the
Borrower's or any of its Subsidiaries' ownership of or
operations on the Real Estate, there has been no (1)
generation, treatment, recycling, storage or disposal of
hazardous waste, as that term is defined under 40 CFR Part 261
or any state equivalent, (2) use of underground storage tanks
or surface impoundments, (3) use of asbestos-containing
materials, or (4) use of polychlorinated biphenyls (PCBs) used
in hydraulic oils, electrical transformers or other equipment;
(I) neither the Borrower nor any of its Subsidiaries
has entered into any negotiations or agreements with any
Person (including, without limitation, any prior owner of any
of the Real Estate or other property of the Borrower or any of
its Subsidiaries) relating to any Remedial Action or
environment-related claim;
(J) neither the Borrower nor any of its Subsidiaries
has received any notice or claim to the effect that it is or
may be liable to any Person as a result of the Release or
threatened Release of a Contaminant into the environment;
(K) neither the Borrower nor any of its Subsidiaries
has any material contingent liability in connection with any
Release or threatened Release of any Contaminant into the
environment;
(L) no Environmental Lien has attached to any of the
Real Estate or other property of the Borrower or of any of its
Subsidiaries;
(M) the presence and condition of all asbestos-
containing material which is on or part of the Real Estate
(excluding any raw materials used in the manufacture of
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products or products themselves) do not violate in any
material respect any currently applicable requirement of
Applicable Law; and
(N) neither the Borrower nor any of its Subsidiaries
manufactures, distributes or sells, and has never
manufactured, distributed or sold, products which contain
asbestos-containing material.
(iii) The Borrower has notified the Lenders and the Agent of
the receipt by the Borrower or by any of its Subsidiaries of any notice
of a material violation of any Environmental Laws and occupational
health and safety laws applicable to the Borrower, any of its
Subsidiaries or any of their respective properties.
(i) Title to Properties. Except as set forth in SCHEDULE 7.1(I), the
Borrower and each of its Subsidiaries has valid and legal title to or leasehold
interest in all personal property, Real Estate owned and other assets used in
its business.
(j) Liens. Except as set forth in SCHEDULE 7.1(J), none of the
properties and assets of the Borrower or any Subsidiary of the Borrower is
subject to any Lien, except Permitted Liens. Other than the Financing
Statements, no financing statement under the Uniform Commercial Code of any
State or other instrument evidencing a Lien which names the Borrower or any
Subsidiary of the Borrower as debtor has been filed (and has not been
terminated) in any State or other jurisdiction, and neither the Borrower nor any
Subsidiary of the Borrower has signed any such financing statement or other
instrument or any security agreement authorizing any secured party thereunder to
file any such financing statement or instrument, except to perfect those Liens
listed on SCHEDULE 7.1(J).
(k) Debt and Guaranties. SCHEDULE 7.1(K) is a complete and correct
listing of all (i) Debt, and (ii) Guaranties of each of the Borrower and each of
its Subsidiaries. Each of the Borrower and its Subsidiaries has performed and is
in compliance with all of the terms of such Indebtedness and Guaranties and all
instruments and agreements relating thereto, and no default or event of default,
or event or condition which with notice or lapse of time, or both, would
constitute such a default or event of default, exists with respect to any such
Indebtedness or Guaranty.
(l) Litigation. Except as set forth on SCHEDULE 7.1(L), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, or any reasonable basis
therefor) against or in any other way relating to or affecting the Borrower or
such Subsidiaries or any of the Acquired Assets or any of the Borrower's or any
of its Subsidiaries' other properties in any court or before any arbitrator of
any kind or before or by any governmental body, except actions, suits or
proceedings of the character normally incident to the kind of business conducted
by the Borrower or any of its Subsidiaries which, if adversely determined, would
not singly or in the aggregate have a Materially Adverse Effect on the Borrower
or such Subsidiary, and there are no strikes or walkouts in progress or pending
relating to any labor contracts to which the Borrower or any of its Subsidiaries
is a party, relating to any labor contracts being negotiated, or otherwise.
(m) Tax Returns and Payments. Except as set forth on SCHEDULE 7.1(M),
all United States federal, state and local as well as foreign national,
provincial and local and other tax returns of the Borrower and each of its
Subsidiaries required by Applicable Law to be filed have been duly filed,
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and all United States federal, state and local and foreign national, provincial
and local and other taxes, assessments and other governmental charges or levies
upon the Borrower and each of its Subsidiaries and the Borrower's and any of its
Subsidiaries' property, income, profits and assets which are due and payable
have been paid, except any such nonpayment which is at the time permitted under
SECTION 10.6. The charges, accruals and reserves on the books of the Borrower
and each of its Subsidiaries in respect of United States federal, state and
local and foreign national, provincial and local taxes for all fiscal years and
portions thereof since the organization of the Borrower are in the judgment of
the Borrower adequate, and the Borrower knows of no reason to anticipate any
additional assessments for any of such years which, singly or in the aggregate,
might have a Materially Adverse Effect on the Borrower.
(n) Burdensome Provisions. Neither the Borrower nor any of its
Subsidiaries is a party to any indenture, agreement, lease or other instrument,
or subject to any charter or corporate restriction, Governmental Approval or
Applicable Law, compliance with the terms of which could reasonably be expected
to have a Materially Adverse Effect on the Borrower or any of its Subsidiaries.
(o) Financial Statements.
(i) The Borrower has furnished to the Agent and the Lenders
(A) copies of the Borrower's unaudited consolidated balance sheet as at
October 3, 1997, and the related statements of income for the 12-month
period then ended, which financial statements are complete and correct
and present fairly and in all material respects in accordance with GAAP
(but for omission of notes and subject to year-end audit adjustments)
consistently applied the financial position of the Borrower's as at
October 3, 1997, and the results of operations of the Borrower for the
12-month period then ended and (B) copies of the Borrower's audited
balance sheet as at November 1, 1996, and the related statements of
income, shareholder's equity and cash flows for the Fiscal Year then
ended, which financial statements are complete and correct and present
fairly and in all material respects in accordance with GAAP
consistently applied the financial position of the Borrower as at
November 1, 1996 and the results of operations of the Borrower for the
Fiscal Year then ended.
(ii) The Borrower has furnished to the Agent and the Lenders
copies of the Projections. The Projections have been be prepared by the
Borrower in light of the past operations of the business of the
Borrower and its Subsidiaries and represent as of the respective dates
thereof the good faith opinion of the Borrower and its senior
management concerning the most probable course of business of the
Borrower and its Subsidiaries.
(iii) Except as disclosed or reflected in the financial
statements described in CLAUSE (I) above, the Borrower does not have
any material liabilities, contingent or otherwise, and there were no
material unrealized or anticipated losses of the Borrower.
(p) Material Adverse Change. Since the date of the last financial
statements of the Borrower delivered to the Agent pursuant to SECTION 7.1(O)(I),
after giving effect to the transactions contemplated hereby,
(i) no material adverse change has occurred in the business,
assets, liabilities, financial condition, results of operations or
business prospects of the Borrower, and
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(ii) no event has occurred or failed to occur which has had,
or may have, singly or in the aggregate, a Materially Adverse Effect on
the Borrower.
(q) ERISA. Neither the Borrower nor any Related Company maintains or
contributes to any Benefit Plan other than those listed on SCHEDULE 7.1(Q).
Except as set forth on SCHEDULE 7.1(Q), each Benefit Plan is in substantial
compliance with ERISA and the Code, including but not limited to those
provisions thereof relating to reporting and disclosure, and neither the
Borrowers nor any Related Company has received any notice asserting that a
Benefit Plan is not in compliance with ERISA. No material liability to the PBGC
or to Multiemployer Plan has been, or is expected to be, incurred by the
Borrowers or any Related Company. Except as set forth on SCHEDULE 7.1(Q), each
Benefit Plan intended to qualify under Section 401(a) of the Code so qualifies
and any related trust is exempt from federal income tax under Section 501(a) of
the Code. A favorable determination letter from the IRS has been issued or
applied for with respect to each such plan and trust and nothing that has
occurred since the date of such determination letter that would adversely affect
such qualification or tax-exempt status. No Benefit Plan subject to the minimum
funding standards of the Code has failed to meet such standards. Neither the
Borrowers nor any Related Company has transferred any pension plan liability in
a transaction that could be subject to Sections 4069 or 4212(c) of ERISA. Except
as set forth on SCHEDULE 7.1(Q), neither the Borrowers nor any Related Company
has any liability, actual or contingent, with respect to any Benefit Plan in
accordance with its terms, and there are no pending or, to the Borrower's
knowledge, threatened claims against a Benefit Plan. No non-exempt prohibited
transaction within the meaning of Section 4975 of the Code or Section 406 of
ERISA has occurred with respect to a Benefit Plan. Except under plans listed on
SCHEDULE 7.1(P), no employee or former employee of the Borrowers or any Related
Company is or may become entitled to any benefit under a Benefit Plan that is a
"welfare plan" within the meaning of Section 3(1) of ERISA following such
employee's termination of employment. Except as set forth on SCHEDULE 7.1(P),
each such welfare plan that is a group health plan has been operated in
compliance with the provisions of Section 4980B of the Code and Sections 601-609
of ERISA and any applicable provisions of state law that are similar.
(r) Absence of Defaults. Neither the Borrower nor any of its
Subsidiaries is in default under its articles or certificate of incorporation or
by-laws and no event has occurred, which has not been remedied, cured or waived,
(i) which constitutes a Default or an Event of Default, or
(ii) which constitutes, or which with the passage of time or
giving of notice, or both, would constitute, a default or event of
default by the Borrower or any of its Subsidiaries under any material
agreement (other than this Agreement) or judgment, decree or order to
which the Borrower or any of its Subsidiaries is a party or by which
the Borrower, any of its Subsidiaries or any of the Borrower's or any
of its Subsidiaries' properties may be bound or which would require the
Borrower or any of its Subsidiaries to make any payment under any
thereof prior to the scheduled maturity date therefor, except, in the
case only of any such agreement, for alleged defaults which are being
contested in good faith by appropriate proceedings and with respect to
which reserves in respect of the Borrower's or such Subsidiary's
reasonably anticipated liability have been established on the books of
the Borrower or such Subsidiary.
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(s) Accuracy and Completeness of Information.
(i) All written information, reports and other papers and data
produced by or on behalf of the Borrower and furnished to the Agent or
any Lender were, at the time the same were so furnished, complete and
correct in all material respects, to the extent necessary to give the
recipient a true and accurate knowledge of the subject matter. No fact
is known to the Borrower which has had, or may in the future have (so
far as the Borrower can foresee), a Materially Adverse Effect upon the
Borrower or any of its Subsidiaries which has not been set forth in the
financial statements or disclosure delivered prior to the Effective
Date, in each case referred to in SECTION 7.1(O), or in such written
information, reports or other papers or data or otherwise disclosed in
writing to the Agent and the Lenders prior to the Agreement Date. No
document furnished or written statement made to the Agent or any Lender
by the Borrower in connection with the negotiation, preparation or
execution of this Agreement or any of the Loan Documents contains or
will contain any untrue statement of a fact material to the
creditworthiness of the Borrower or omits or will omit to state a
material fact necessary in order to make the statements contained
therein not misleading.
(ii) The Borrower has no reason to believe that any document
furnished or written statement made to the Agent or any Lender by any
Person other than the Borrower in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan Documents
contained any incorrect statement of a material fact or omitted to
state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not
misleading.
(t) Solvency. In each case after giving effect to the Indebtedness
represented by the Loans outstanding and to be incurred and the transactions
contemplated by this Agreement, the Borrower and each of its Subsidiaries is
solvent, having assets of a fair salable value which exceeds the amount required
to pay its debts as they become absolute and matured (including contingent,
subordinated, unmatured and unliquidated liabilities), and the Borrower and each
of its Subsidiaries is able to and anticipates that it will be able to meet its
debts as they mature and has adequate capital to conduct the business in which
it is or proposes to be engaged.
(u) Receivables.
(i) Status.
(A) Each Receivable reflected in the computations
included in any Borrowing Base Certificate meets the criteria
enumerated in CLAUSES (A) through (T) of the definition of
Eligible Receivables, except as disclosed in such Borrowing
Base Certificate or as disclosed in a timely manner in a
subsequent Borrowing Base Certificate or otherwise in writing
to the Agent.
(B) The Borrower has no knowledge of any fact or
circumstance not disclosed to the Agent in a Borrowing Base
Certificate or otherwise in writing which would impair the
validity or collectibility of any Receivable of $500,000 or
more or of Receivables which (regardless of the individual
amount thereof) aggregate $1,000,000 or more.
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(ii) Chief Executive Office. The chief executive office of the
Borrower and the books and records relating to the Receivables are
located at the address or addresses set forth on SCHEDULE 7.1(U); the
Borrower has not maintained its chief executive office or books and
records relating to any Receivables at any other address at any time
during the five years immediately preceding the Agreement Date except
as disclosed on SCHEDULE 7.1(U).
(v) Inventory.
(i) Schedule of Inventory. All Inventory included in any
Schedule of Inventory or Borrowing Base Certificate delivered to the
Agent pursuant to SECTION 9.12 meets the criteria enumerated in CLAUSES
(A) through (H) of the definition of Eligible Inventory, except as
disclosed in such Schedule of Inventory or Borrowing Base Certificate
or in a subsequent Schedule of Inventory or Borrowing Base Certificate,
or as otherwise specifically disclosed in writing to the Agent.
(ii) Condition. All Inventory is in good condition, meets all
standards imposed by any governmental agency, or department or division
thereof, having regulatory authority over such goods, their use or
sale, and is currently either usable or salable in the normal course of
the Borrower's business, except to the extent reserved against in the
financial statements referred to in SECTION 7.1(O) or delivered
pursuant to ARTICLE 11 or as disclosed on a Schedule of Inventory
delivered to the Agent pursuant to SECTION 9.12(B).
(iii) Location. All Inventory is located on the premises set
forth on SCHEDULE 7.1(V) or is Inventory in transit to one of such
locations, except as otherwise disclosed in writing to the Agent and
the Borrower has not, in the last year, located such Inventory at
premises other than those set forth on SCHEDULE 7.1(V).
(w) Equipment. All Equipment is in good order and repair in all
material respects and is located on the premises set forth on SCHEDULE 7.1(W)
and has been so located at all times during the last year.
(x) Real Property. The Borrower owns no Real Estate and leases no Real
Estate other than that described on SCHEDULE 7.1(X) and other than Real Estate
acquired or leased after the Effective Date for which the Borrower has complied
with the requirements of SECTION 9.14.
(y) Corporate and Fictitious Names. Except as otherwise disclosed on
SCHEDULE 7.1(Y), during the five-year period preceding the Agreement Date,
neither the Borrower nor any predecessor thereof has been known as or used any
corporate or fictitious name other than the corporate name of the Borrower on
the Effective Date.
(z) Federal Reserve Regulations. Neither the Borrower nor any of its
Subsidiaries is engaged and none will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (as each of the quoted terms is
defined or used in Regulations G and U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans will be used for so
purchasing or carrying margin stock or, in any event, for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation G,
T, U or X of such Board of Governors. If
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requested by the Agent or any Lender, the Borrower will furnish to the Agent and
the Lenders a statement or statements in conformity with the requirements of
said Regulation G, T, U or X to the foregoing effect.
(aa) Investment Company Act. The Borrower is not an "investment
company" or a company "controlled" by an "investment company" (as each of the
quoted terms is defined or used in the Investment Company Act of 1940, as
amended).
(bb) Employee Relations. The Borrower and each of its Subsidiaries has
a stable work force in place and is not, except as set forth on SCHEDULE
7.1(BB), party to any collective bargaining agreement nor has any labor union
been recognized as the representative of the Borrower's or any of its
Subsidiaries' employees, and the Borrower knows of no pending, threatened or
contemplated strikes, work stoppage or other labor disputes involving the
Borrower's or any of its Subsidiaries' employees.
(cc) Proprietary Rights. SCHEDULE 7.1(CC) sets forth a correct and
complete list of all of the Proprietary Rights. None of the Proprietary Rights
is subject to any licensing agreement or similar arrangement except as set forth
on SCHEDULE 7.1(CC) or as entered into in the sale or distribution of the
Borrower's Inventory in the ordinary course of business. To the best of the
Borrower's knowledge, none of the Proprietary Rights infringes on or conflicts
with any other Person's property, and no other Person's property infringes on or
conflicts with the Proprietary Rights. The Proprietary Rights described on
SCHEDULE 7.1(CC) constitute all of the property of such type necessary to the
current and anticipated future conduct of the Borrower's business.
(dd) Trade Names. All trade names or styles under which the Borrower
sells Inventory or Equipment or creates Receivables, or to which instruments in
payment of Receivables are made payable, are listed on SCHEDULE 7.1(DD).
(ee) Bank Accounts. SCHEDULE 7.1(EE) is a complete and correct list of
all checking accounts, deposit accounts, lockboxes and other bank accounts
maintained by the Borrower.
SECTION 7.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this ARTICLE 7 and all statements
contained in any certificate, financial statement, or other instrument,
delivered by or on behalf of the Borrower pursuant to or in connection with this
Agreement or any of the Loan Documents (including, but not limited to, any such
representation, warranty or statement made in or in connection with any
amendment thereto) shall constitute representations and warranties made under
this Agreement. All representations and warranties made under this Agreement
shall be made or deemed to be made at and as of the Agreement Date, at and as of
the Effective Date and at and as of the date of each Loan, except that
representations and warranties which, by their terms are applicable only to one
such date shall be deemed to be made only at and as of such date. All
representations and warranties made or deemed to be made under this Agreement
shall survive and not be waived by the execution and delivery of this Agreement,
any investigation made by or on behalf of the Lender or any borrowing hereunder.
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ARTICLE 8
SECURITY INTEREST
SECTION 8.1. Security Interest.
(a) To secure the payment, observance and performance of the Secured
Obligations, the Borrower hereby confirms the mortgages, pledges and assignment
pursuant to the Existing Credit Agreement and the related Security Agreement
dated as of March 15, 1996, as amended, between the Borrower and NationsBank,
N.A., as the agent for the Lenders under the Existing Credit Agreement and
re-mortgages, re-pledges, and re-assigns all of the Collateral to the Agent, for
the benefit of itself as Agent and the Lenders, and confirms the grant to the
Agent, for the benefit of itself as Agent and the Lenders pursuant to the
Existing Credit Agreement and said related Security Agreement and re-grants to
the Agent, for the benefit of itself as Agent and the Lenders, a continuing
security interest in, and a continuing Lien upon, all of the Collateral.
(b) As additional security for all of the Secured Obligations, the
Borrower grants to the Agent, for the benefit of itself as Agent and the
Lenders, a security interest in, and assigns to the Agent, for the benefit of
itself as Agent and the Lenders, all of the Borrower's right, title and interest
in and to, any deposits or other sums at any time credited by or due from each
Lender and each Affiliate of a Lender to the Borrower, or credited by or due
from any participant of any Lender to the Borrower, with the same rights therein
as if the deposits or other sums were credited by or due from such Lender. The
Borrower hereby authorizes each Lender and each Affiliate of such Lender and
each participant to pay or deliver to the Agent, for the account of the Lenders,
without any necessity on the Agent's or any Lender's part to resort to other
security or sources of reimbursement for the Secured Obligations, at any time
during the continuation of any Event of Default or in the event that the Agent,
on behalf of the Lenders, should make demand for payment hereunder and without
further notice to the Borrower (such notice being expressly waived), any of the
aforesaid deposits (general or special, time or demand, provisional or final) or
other sums for application to any Secured Obligation, irrespective of whether
any demand has been made or whether such Secured Obligation is mature, and the
rights given the Agent, the Lenders, their Affiliates and participants hereunder
are cumulative with such Person's other rights and remedies, including other
rights of set-off. The Agent will promptly notify the Borrower of its receipt of
any such funds for application to the Secured Obligations, but failure to do so
will not affect the validity or enforceability thereof. The Agent may give
notice of the above grant of a security interest in and assignment of the
aforesaid deposits and other sums, and authorization, to, and make any suitable
arrangements with, any Lender, any such Affiliate of any Lender or participant
for effectuation thereof, and the Borrower hereby irrevocably appoints the Agent
as its attorney to collect any and all such deposits or other sums to the extent
any such payment is not made to the Agent or any Lender by such Lender,
Affiliate or participant.
SECTION 8.2. Continued Priority of Security Interest.
(a) The Security Interest granted by the Borrower shall at all times be
valid, perfected and enforceable against the Borrower and all third parties in
accordance with the terms of this Agreement, as security for the Secured
Obligations, and the Collateral shall not at any time be subject to any Liens
that are prior to, on a parity with or junior to the Security Interest, other
than Permitted Liens.
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(b) The Borrower shall, at its sole cost and expense, take all action
that may be necessary or desirable, or that the Agent may reasonably request, so
as at all times to maintain the validity, perfection, enforceability and rank of
the Security Interest in the Collateral in conformity with the requirements of
SECTION 8.2(A), or to enable the Agent and the Lenders to exercise or enforce
their rights hereunder, including, but not limited to:
(i) paying all taxes, assessments and other claims lawfully
levied or assessed on any of the Collateral, except to the extent that
such taxes, assessments and other claims constitute Permitted Liens,
(ii) obtaining, after the Agreement Date, landlords' and
mortgagees' releases, subordinations or waivers, and using all
reasonable efforts to obtain mechanics' releases, subordinations or
waivers,
(iii) delivering to the Agent, for the benefit of the Lenders,
endorsed or accompanied by such instruments of assignment as the Agent
may specify, and stamping or marking, in such manner as the Agent may
specify, any and all chattel paper, instruments, letters and advices of
guaranty and documents evidencing or forming a part of the Collateral,
and
(iv) executing and delivering financing statements, pledges,
designations, hypothecations, notices and assignments in each case in
form and substance satisfactory to the Agent relating to the creation,
validity, perfection, maintenance or continuation of the Security
Interest under the Uniform Commercial Code or other Applicable Law.
(c) The Agent is hereby authorized to file one or more financing or
continuation statements or amendments thereto without the signature of or in the
name of the Borrower for any purpose described in SECTION 8.2(B). The Agent will
give the Borrower notice of the filing of any such statements or amendments,
which notice shall specify the locations where such statements or amendments
were filed. A carbon, photographic, xerographic or other reproduction of this
Agreement or of any of the Security Documents or of any financing statement
filed in connection with this Agreement is sufficient as a financing statement.
(d) The Borrower shall mark its books and records as directed by the
Agent and as may be necessary or appropriate to evidence, protect and perfect
the Security Interest and shall cause its financial statements to reflect the
Security Interest.
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ARTICLE 9
COLLATERAL COVENANTS
Until the Revolving Credit Facility has been terminated and all the
Secured Obligations have been paid in full, unless the Required Lenders shall
otherwise consent in the manner provided in SECTION 16.11:
SECTION 9.1. Collection of Receivables.
(a) The Borrower will cause all monies, checks, notes, drafts and other
payments relating to or constituting proceeds of trade accounts receivable
(other than Receivables sold and assigned to the Factors under the Factoring
Agreements), all payments by Factors of proceeds of factored Receivables, and
all other Collateral to be deposited promptly in an Agency Account in accordance
with the procedures set out in the corresponding Agency Account Agreement. In
particular, the Borrower will advise each Account Debtor that makes payment to
the Borrower by wire transfer, automated clearinghouse ("ACH") transfer or
similar means to make payment directly to an Agency Account, and
(b) The Borrower and the Agent shall cause all collected balances in
each Agency Account to be transmitted daily by wire transfer, ACH transfer,
depository transfer check or other means in accordance with the procedures set
forth in the corresponding Agency Account Agreement, to the Agent at the Agent's
Office:
(i) for application, on account of the Secured Obligations, as
provided in SECTIONS 2.3(C), 13.2, and 13.3, such credits to be entered
as of the Business Day they are received if they are received prior to
1:30 p.m. and to be conditioned upon final payment in cash or solvent
credits of the items giving rise to them, and
(ii) with respect to the balance, so long as no Default or
Event of Default has occurred and is continuing, for transfer by wire
transfer, ACH transfer or depository transfer check to a Controlled
Disbursement Account.
(c) Any monies, checks, notes, drafts or other payments referred to in
SUBSECTION (A) of this SECTION 9.1 which, notwithstanding the terms of such
subsection, are received by or on behalf of the Borrower will be held in trust
for the Agent and will be delivered to the Agent or a Clearing Bank, as promptly
as possible, in the exact form received, together with any necessary
endorsements for application by the Agent directly to the Secured Obligations
or, if applicable, for deposit in the Agency Account maintained with a Clearing
Bank and processing in accordance with the terms of the corresponding Agency
Account Agreement.
SECTION 9.2. Verification and Notification. The Agent shall have the
right at any time and from time to time,
(a) in the name of the Agent, the Lenders or in the name of the
Borrower, to verify the validity, amount or any other matter relating to any
Receivables by mail, telephone, telegraph or otherwise,
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(b) during normal business hours, to review, examine and make extracts
from all records and files related to any of the Receivables, and
(c) if an Event of Default has occurred, to notify the Account Debtors
or obligors under any Receivables of the assignment of such Receivables to the
Agent, for the benefit of the Lenders, and to direct such Account Debtor or
obligors to make payment of all amounts due or to become due thereunder directly
to the Agent, for the account of the Lenders, and, upon such notification and at
the expense of the Borrower, to enforce collection of any such Receivables and
to adjust, settle or compromise the amount or payment thereof, in the same
manner and to the same extent as the Borrower might have done.
SECTION 9.3. Disputes, Returns and Adjustments.
(a) In the event any amounts due and owing under any Receivable for an
amount in excess of $500,000 are in dispute between the Account Debtor and the
Borrower, the Borrower shall provide the Agent with prompt written notice
thereof.
(b) The Borrower shall notify the Agent promptly of all returns and
credits in excess of $500,000 in respect of any Receivable, which notice shall
specify the Receivable affected.
(c) The Borrower may, in the ordinary course of business unless a
Default or an Event of Default has occurred and is continuing, grant any
extension of time for payment of any Receivable or compromise, compound or
settle the same for less than the full amount thereof, or release wholly or
partly any Person liable for the payment thereof, or allow any credit or
discount whatsoever therein; provided that (i) no such action results in the
reduction of more than $500,000 in the amount payable with respect to any
Receivable or of more than $1,000,000 with respect to all Receivables in any
fiscal year of the Borrower (in each case, excluding the allowance of credits or
discounts generally available to Account Debtors in the ordinary course of the
Borrower's business), and (ii) the Agent is promptly notified of the amount of
such adjustments and the Receivable(s) affected thereby.
SECTION 9.4. Invoices.
(a) The Borrower will not use any invoices other than invoices in the
form delivered to the Agent prior to the Agreement Date without giving the Agent
30 days' prior notice of the intended use of a different form of invoice
together with a copy of such different form.
(b) Upon the request of the Agent, the Borrower shall deliver to the
Agent, at the Borrower's expense, copies of customers' invoices or the
equivalent, original shipping and delivery receipts or other proof of delivery,
customers' statements, customer address lists, the original copy of all
documents, including, without limitation, repayment histories and present status
reports, relating to Receivables and such other documents and information
relating to the Receivables as the Agent shall specify.
SECTION 9.5. Delivery of Instruments. In the event any Receivable is at any
time evidenced by a promissory note, trade acceptance or any other instrument
for the payment of money, the Borrower will immediately thereafter deliver such
instrument to the Agent, appropriately endorsed to the Agent, for the benefit of
the Lenders.
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SECTION 9.6. Sales of Inventory. All sales of Inventory will be made in
compliance with all requirements of Applicable Law.
SECTION 9.7. Ownership and Defense of Title.
(a) Except for Permitted Liens, the Borrower shall at all times be the
sole owner or lessee of each and every item of Collateral and shall not create
any lien on, or sell, lease, exchange, assign, transfer, pledge, hypothecate,
grant a security interest or security title in or otherwise dispose of, any of
the Collateral or any interest therein, except for sales of Inventory in the
ordinary course of business, for cash or on open account or on terms of payment
ordinarily extended to its customers, and except for dispositions that are
otherwise expressly permitted under this Agreement. The inclusion of "proceeds"
of the Collateral under the Security Interest shall not be deemed a consent by
the Agent or the Lenders to any other sale or other disposition of any part or
all of the Collateral.
(b) The Borrower shall defend its title or leasehold interest in and
to, and the Security Interest in, the Collateral against the claims and demands
of all Persons.
SECTION 9.8. Insurance.
(a) The Borrower shall at all times maintain insurance on the Inventory
and Equipment against loss or damage by fire, theft (excluding theft by
employees), burglary, pilferage, loss in transit and such other hazards as the
Agent shall reasonably specify, in amounts not to exceed those obtainable at
commercially reasonable rates and under policies issued by insurers acceptable
to the Agent in the exercise of its reasonable judgment. All premiums on such
insurance shall be paid by the Borrower and copies of the policies delivered to
the Agent. The Borrower will not use or permit the Inventory or Equipment to be
used in violation of Applicable Law or in any manner which might render
inapplicable any insurance coverage.
(b) All insurance policies required under SECTION 9.8(A) shall name the
Agent, for the benefit of the Lenders, as an additional insured and shall
contain loss payable clauses in the form submitted to the Borrower by the Agent,
or otherwise in form and substance satisfactory to the Required Lenders, naming
the Agent, for the benefit of the Lenders, as loss payee, as its interests may
appear, and providing that
(i) all proceeds thereunder shall be payable to the Agent, for
the benefit of the Lenders,
(ii) no such insurance shall be affected by any act or neglect
of the insurer or owner of the property described in such policy, and
(iii) such policy and loss payable clauses may be cancelled,
amended or terminated only upon at least ten (10) days' prior written
notice given to the Agent.
(c) Any proceeds of insurance referred to in this SECTION 9.8 which are
paid to the Agent, for the account of the Lenders, shall be, at the option of
the Required Lenders in their sole discretion, either (i) applied to replace the
damaged or destroyed property, or (ii) applied to the payment or prepayment of
the Secured Obligations , PROVIDED that in the event that the proceeds from any
single casualty do not exceed $100,000, then, upon the Borrower's written
request to the Agent, provided
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that no Default or Event of Default shall have occurred and be continuing, such
proceeds shall be disbursed by the Agent to the Borrower pursuant to such
procedures as the Agent shall reasonably establish for application to the
replacement of the damaged or destroyed property.
SECTION 9.9. Location of Offices and Collateral.
(a) The Borrower will not change the location of its chief executive
office or the place where it keeps its books and records relating to the
Collateral or change its name, its identity or corporate structure without
giving the Agent 60 days' prior written notice thereof.
(b) All Inventory, other than Inventory in transit to any such
location, will at all times be kept by the Borrower at the locations set forth
in SCHEDULE 7.1(V), and shall not, without the prior written consent of the
Agent, be removed therefrom except pursuant to sales of Inventory permitted
under SECTION 9.7(A).
(c) If any Inventory is in the possession or control of any of the
Borrower's agents or processors, the Borrower shall notify such agents or
processors of the Security Interest (and shall promptly provide copies of any
such notice to the Agent and the Lenders) and, upon the occurrence of an Event
of Default, shall instruct them (and cause them to acknowledge such instruction)
to hold all such Inventory for the account of the account of the Lenders,
subject to the instructions of the Agent.
SECTION 9.10. Records Relating to Collateral.
(a) The Borrower will at all times
(i) keep complete and accurate records of Inventory on a basis
consistent with past practices of the Borrower so as to permit
comparison of Inventory records relating to different time periods,
itemizing and describing the kind, type and quantity of Inventory and
the Borrower's cost thereof and a current price list for such
Inventory, and
(ii) keep complete and accurate records of all other
Collateral.
(b) The Borrower will prepare a physical listing of all Inventory and
Equipment, wherever located, at least annually.
SECTION 9.11. Inspection. The Agent and each Lender (by any of their
officers, employees or agents) shall have the right, to the extent that the
exercise of such right shall be within the control of the Borrower, at any time
or times to
(a) visit the properties of the Borrower and its Subsidiaries, inspect
the Collateral and the other assets of the Borrower and its Subsidiaries and
inspect and make extracts from the books and records of the Borrower and its
Subsidiaries, including but not limited to management letters prepared by
independent accountants, all during customary business hours at such premises;
(b) discuss the Borrower's and its Subsidiaries' business, assets,
liabilities, financial condition, results of operations and business prospects,
insofar as the same are reasonably related to the rights of the Agent or the
Lenders hereunder or under any of the Loan Documents, with the Borrower's and
its Subsidiaries' (i) principal officers, (ii) independent accountants, and
(iii) any other
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Person (except that any such discussion with any third parties shall be
conducted only in accordance with the Agent's or such Lender's standard
operating procedures relating to the maintenance of the confidentiality of
confidential information of borrowers); and
(c) verify the amount, quantity, value and condition of, or any other
matter relating to, any of the Collateral (other than Receivables) and in this
connection to review, audit and make extracts from all records and files related
to any of the Collateral.
The Borrower will deliver to the Agent, for the benefit of the Lenders, any
instrument necessary for it to obtain records from any service bureau
maintaining records on behalf of the Borrower. The Lenders will make reasonable
efforts to coordinate their visits to the Borrower's premises through the Agent
so as to minimize any inconvenience to the Borrower occasioned by such visits.
SECTION 9.12. Information and Reports.
(a) Schedules of Receivables. The Borrower shall deliver to the Agent
on or before the Effective Date and not later than the 20th day of each Fiscal
Month thereafter:
(i) a Schedule of Receivables sold to the Factors pursuant to
the Factoring Agreements, which shall be as of the last Business Day of
the immediately preceding month shall be reconciled to a Borrowing Base
Certificate as of such last Business Day, and shall set forth a
detailed aged trial balance of all such Receivables, specifying the
names and balance due for each Account Debtor obligated on a Receivable
so listed and
(ii) a Schedule of Receivables that have not been sold to
Factors pursuant to the Factoring Agreements, which shall be as of the
last Business Day of the preceding Fiscal Month, shall be reconciled to
a Borrowing Base Certificate as of such day and shall set forth a
detailed aged trial balance of all such Receivables, specifying the
names, addresses and balance due for each Account Debtor obligated on a
Receivable so listed.
(b) Schedule of Inventory. The Borrower shall deliver to the Agent on
or before the Effective Date and not later than the last Business Day of each
Fiscal Month thereafter a Schedule of Inventory as of the last Business Day of
the immediately preceding Fiscal Month of the Borrower, itemizing and describing
the kind, type and quantity of Inventory, the Borrower's cost thereof and the
location thereof.
(c) Borrowing Base Certificate. The Borrower shall deliver to the Agent
not later than Wednesday of each week after the Effective Date, a Borrowing Base
Certificate prepared as of the close of business on the previous Friday, and not
later than the last Business Day of each Fiscal Month a Borrowing Base
Certificate as of the last Business Day of the preceding Fiscal Month.
(d) Notice of Diminution of Value. The Borrower shall give prompt
notice to the Agent of any matter or event which has resulted in, or may result
in, the diminution in excess of $500,000 in the value of any of its Collateral,
except for any such diminution in the value of any Receivables or Inventory in
the ordinary course of business which has been appropriately reserved against,
as reflected in financial statements previously delivered to the Agent and the
Lenders pursuant to ARTICLE 11.
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(e) Additional Information. The Agent may in its discretion from time
to time request that the Borrower deliver the schedules, certificates described
in SECTIONS 9.12(A), (B) and (C) more or less often and on different schedules
than specified in such Sections and the Borrower will comply with such requests.
The Borrower will also furnish to the Agent and each Lender such other
information with respect to the Collateral as the Agent or any Lender may from
time to time reasonably request.
SECTION 9.13. Power of Attorney. The Borrower hereby appoints the Agent
as its attorney, with power
(a) to endorse the name of the Borrower on any checks, notes,
acceptances, money orders, drafts or other forms of payment or security that may
come into the Agent's or any Lender's possession, and
(b) to sign the name of the Borrower on any invoice or bill of lading
relating to any Receivable, Inventory or other Collateral, on any drafts against
customers related to letters of credit, on schedules and assignments of
Receivables furnished to the Agent or any Lender by the Borrower, on notices of
assignment, financing statements and other public records relating to the
perfection or priority of the Security Interest, verifications of account and
notices to or from customers.
SECTION 9.14. Additional Real Estate and Leases.
(a) Promptly upon the Borrower's acquisition of any interest (including
a leasehold interest) in any Real Estate, the Borrower shall deliver to the
Agent, for the benefit of itself as Agent and the Lenders, an executed Mortgage
in form and substance satisfactory to the Agent, conveying to the Agent, for the
benefit of itself and the Lenders, a first priority Lien on such Real Estate,
subject only to such prior Liens as the Agent shall consent to in writing. If
requested by the Agent, the Borrower shall also deliver to the Agent at the
Borrower's expense a mortgagee title insurance policy in favor of the Agent and
the Lenders insuring such Mortgage to create and convey such Lien, subject only
to such exceptions as are consented to by the Agent and shall deliver to the
Agent, at the Agent's request, such other items with respect to such Real
Estate, all in form and substance satisfactory to the Agent, as the Agent shall
reasonably request.
(b) Promptly upon the Borrower's entry into any lease of Real Estate
(other than a lease conveying an interest in Real Estate, which shall be subject
to the provisions of SUBSECTION (A) above), the Borrower shall collaterally
assign to the Agent, for the benefit of itself and the Lenders, the Borrower's
interest in such lease, in form and substance satisfactory to the Agent. The
Borrower shall also deliver to the Agent an executed landlord's waiver and
consent with respect to such lease in form and substance satisfactory to the
Agent.
SECTION 9.15. Assignment of Claims Act. Upon the request of the Agent, the
Borrower shall execute any documents or instruments and shall take such steps or
actions reasonably required by the Agent so that all monies due or to become due
under any contract with the United States of America, the District of Columbia
or any state, county, municipality or other domestic or foreign governmental
entity, or any department, agency or instrumentality thereof, will be assigned
to the Agent, for the benefit of itself and the Lenders, and notice given
thereof in accordance with the requirements of the Assignment of Claims Act of
1940, as amended, or any other laws, rules or regulations relating to the
assignment of any such contract and monies due to or to become due.
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ARTICLE 10
AFFIRMATIVE COVENANTS
Until the Revolving Credit Facility has been terminated and all the
Secured Obligations have been paid in full, unless the Required Lenders shall
otherwise consent in the manner provided for in SECTION 16.11, the Borrower
will, and will cause each of its Subsidiaries to:
SECTION 10.1. Preservation of Corporate Existence and Similar Matters.
Preserve and maintain its corporate existence, rights, franchises, licenses and
privileges in the jurisdiction of its incorporation and qualify and remain
qualified as a foreign corporation and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization.
SECTION 10.2. Compliance with Applicable Law. Comply with all
Applicable Law relating to the Borrower or such Subsidiary except to the extent
being contested in good faith by appropriate proceedings and for which reserves
in respect of the Borrower's or such Subsidiary's reasonably anticipated
liability have been appropriately established.
SECTION 10.3. Maintenance of Property. In addition to, and not in
derogation of, the requirements of SECTION 9.7 and of the Security Documents,
(a) protect and preserve all properties material to its business,
including copyrights, patents, trade names and trademarks, and maintain in good
repair, working order and condition in all material respects, with reasonable
allowance for wear and tear, all tangible properties, and
(b) from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties
necessary for the conduct of its business, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
SECTION 10.4. Conduct of Business. At all times carry on its business
in an efficient manner and engage only the business described in SECTION 7.1(G).
SECTION 10.5. Insurance. Maintain, in addition to the coverage required
by SECTION 9.8 and the Security Documents, insurance with responsible insurance
companies against such risks and in such amounts as is customarily maintained by
similar businesses or as may be required by Applicable Law, and from time to
time deliver to the Agent or any Lender upon its request a detailed list of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby.
SECTION 10.6. Payment of Taxes and Claims. Pay or discharge when due
(a) all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits or upon any properties belonging to it,
except that real property AD VALOREM taxes shall be deemed to have been so paid
or discharged if the same are paid before they become delinquent, and
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(b) all lawful claims of materialmen, mechanics, carriers, warehousemen
and landlords for labor, materials, supplies and rentals which, if unpaid, might
become a Lien on any properties of the Borrower;
except that this SECTION 10.6 shall not require the payment or discharge of any
such tax, assessment, charge, levy or claim which is being contested in good
faith by appropriate proceedings and for which reserves in respect of reasonably
anticipated liability have been appropriately established.
SECTION 10.7. Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete), as may be required or as may be necessary to permit the
preparation of financial statements in accordance with GAAP.
SECTION 10.8. Use of Proceeds.
(a) Use the proceeds of
(i) the initial Revolving Credit Loan and the Term Loans to
pay amounts indicated on SCHEDULE 10.8 to the Persons indicated
thereon, and
(ii) all subsequent Loans only for working capital and general
business purposes, and
(b) not use any part of such proceeds to purchase or, to carry or
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulation G or U of the Board of Governors
of the Federal Reserve System) or, in any event, for any purpose which would
involve a violation of such Regulation G or U or of Regulation T or X of such
Board of Governors, or for any purpose prohibited by law or by the terms and
conditions of this Agreement.
SECTION 10.9. Hazardous Waste and Substances; Environmental
Requirements.
(a) In addition to, and not in derogation of, the requirements of
SECTION 10.2 and of the Security Documents, comply with all Environmental Laws
and all Applicable Laws relating to occupational health and safety (except for
instances of noncompliance that are being contested in good faith by appropriate
proceedings if reserves in respect of the Borrower's or such Subsidiary's
reasonably anticipated liability therefor have been appropriately established),
promptly notify the Agent of its receipt of any notice of a violation of any
such Environmental Laws or other such Applicable Laws and indemnify and hold the
Agent and the Lenders harmless from all loss, cost, damage, liability, claim and
expense incurred by or imposed upon the Agent or any Lender on account of the
Borrower's failure to perform its obligations under this SECTION 10.9.
(b) Whenever the Borrower gives notice to the Agent pursuant to this
SECTION 10.9 or otherwise with respect to a matter that reasonably could be
expected to result in liability to the Borrower or any Subsidiary in excess of
$100,000 in the aggregate, the Borrower shall, at the Agent's request and the
Borrower's expense (i) cause an independent environmental engineer acceptable to
the Agent to conduct an assessment, including tests where necessary, of the site
where the noncompliance or alleged noncompliance with Environmental Laws has
occurred and prepare and deliver to the
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Agent a report setting forth the results of such assessment, a proposed plan to
bring the Borrower (or such Subsidiary) into compliance with such Environmental
Laws (if such assessment indicates noncompliance) and an estimate of the costs
thereof, and (ii) provide to the Agent a supplemental report of such engineer
whenever the scope of the noncompliance, or the response thereto or the
estimated costs thereof, shall materially adversely change.
SECTION 10.10. Minimum Revolver Availability. Maintain an excess of the
Borrowing Base over the aggregate outstanding principal amount of Revolving
Credit Loans equal to or greater than $2,000,000.
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ARTICLE 11
INFORMATION
Until the Revolving Credit Facility has been terminated and all the
Secured Obligations have been paid in full, unless the Required Lenders shall
otherwise consent in the manner set forth in SECTION 16.11, the Borrower will
furnish to the Agent and to each Lender at its offices then designated for
notices pursuant to SECTION 16.1, the statements, reports, certificates, and
other information provided for in this ARTICLE 11. All written information,
reports, statements and other papers and data furnished to the Agent or any
Lender by or at the request of the Borrower, whether pursuant to this ARTICLE 11
or any other provision of this Agreement or of any other Loan Document, shall
be, at the time the same is so furnished, complete and correct in all material
respects to the extent necessary to give the Agent and the Lenders true and
accurate knowledge of the subject matter.
Specifically, the Borrower will so furnish:
SECTION 11.1. Financial Statements.
(a) Audited Year-End Statements. As soon as available, but in any event
within 90 days after the end of each Fiscal Year, copies of the consolidating
and consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related statements of
income, shareholders' equity and cash flows for such fiscal year, in each case
setting forth in
comparative form the figures for the previous fiscal year of the Borrower,
reported on, as to such consolidated statements, without qualification, by Ernst
& Young LLC or other independent certified public accountants of nationally
recognized standing; and
(b) Monthly Financial Statements. As soon as available after the end of
each month, but in any event within 30 days after the end of each Fiscal Month,
copies of the unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such Fiscal Month and the related
unaudited consolidated statements of income and cash flows for the Borrower and
its Consolidated Subsidiaries for such Fiscal Month and for the portion of the
Fiscal Year through such Fiscal Month, certified by a Financial Officer of the
Borrower as presenting fairly the financial condition and results of operations
of the Borrower (subject to normal year-end audit adjustments) for the
applicable period(s);
all such financial statements to be complete and correct in all material
respects and prepared in accordance with GAAP (except, with respect to interim
financial statements, for the omission of notes and for the effect of normal
year-end audit adjustments) applied consistently throughout the periods
reflected therein; and
(c) Annual Budget. Not later than the 30th day of each Fiscal Year, an
operating budget for such fiscal year, prepared on a monthly basis and including
balance sheets, yearly statements, cash flows, projected Loans and Availability.
SECTION 11.2. Accountants' Certificate. Together with the financial
statements referred to in SECTION 11.1(A), a certificate of such accountants
addressed to the Agent
(a) stating that in making the examination necessary for the
certification of such financial statements, nothing has come to their attention
to lead them to believe that any Default or Event of
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Default exists and, in particular, they have no knowledge of any Default or
Event of Default or, if such is not the case, specifying such Default or Event
of Default and its nature, and
(b) having attached the calculations, prepared by the Borrower and
reviewed by such accountants, required to establish whether or not the Borrower
is in compliance with the covenants contained in SECTIONS 12.1, 12.2, 12.5,
12.10 AND 12.11, as at the date of such financial statements.
SECTION 11.3. Officer's Certificate. At the time that the Borrower
furnishes the financial statements pursuant to SECTION 11.1(B) for any Fiscal
Month that is the last Fiscal Month of a Fiscal Quarter, a certificate of its
President or a Financial Officer
(a) setting forth as at the end of such Fiscal Quarter or Fiscal Year,
as the case may be, the calculations required to establish whether or not the
Borrower was in compliance with the requirements of SECTIONS 12.1, 12.2, 12.5,
12.10 AND 12.11, as at the end of each respective period,
(b) stating that the information on the schedules to this Agreement is
complete and accurate as of the date of such certificate or, if such is not the
case, attaching to such certificate updated schedules in accordance with the
provisions of SECTION 11.8, and
(c) stating that, based on a reasonably diligent examination, no
Default or Event of Default exists, or, if such is not the case, specifying such
Default or Event of Default and its nature, when it occurred, whether it is
continuing and the steps being taken by the Borrower with respect to such
Default or Event of Default.
SECTION 11.4. Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants, including, without limitation, any management report.
(b) As soon as practicable, copies of all financial statements and
reports that the Borrower shall send to its shareholders generally and of all
registration statements and all regular or periodic reports which the Borrower
shall file with the Securities and Exchange Commission or any successor
commission.
(c) From time to time and as soon as reasonably practicable following
each request, such forecasts, data, certificates, reports, statements, opinions
of counsel, documents or further information regarding the business, assets,
liabilities, financial condition, results of operations or business prospects of
the Borrower or any of its Subsidiaries as the Agent or any Lender may
reasonably request and that the Borrower has or (except in the case of legal
opinions relating to the perfection or priority of the Security Interest)
without unreasonable expense can obtain; PROVIDED, HOWEVER, that the Lenders
shall, to the extent reasonably practicable, coordinate examinations of the
Borrower's records by their respective internal examiners. The rights of the
Agent and the Lenders under this SECTION 11.4 are in addition to and not in
derogation of their rights under any other provision of this Agreement or of any
other Loan Document.
(d) If requested by the Agent or any Lender, the Borrower will furnish
to the Agent and the Lenders statements in conformity with the requirements of
Federal Reserve Form G-3 or U-1
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referred to in Regulation G and U, respectively, of the Board of Governors of
the Federal Reserve System.
SECTION 11.5. Notice of Litigation and Other Matters. Prompt notice of:
(a) the commencement, to the extent the Borrower is aware of the same,
of all proceedings and investigations by or before any governmental or
nongovernmental body and all actions and proceedings in any court or before any
arbitrator against or in any other way relating to or affecting the Borrower,
any of its Subsidiaries or any of the Borrower's or any of its Subsidiaries'
properties, assets or businesses, which might, singly or in the aggregate,
result in the occurrence of a Default or an Event of Default, or have a
Materially Adverse Effect on the Borrower or any of its Subsidiaries,
(b) any amendment of the articles of incorporation or by-laws of the
Borrower or any of its Subsidiaries,
(c) any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Borrower or any of
its Subsidiaries which has had or may have, singly or in the aggregate, a
Materially Adverse Effect on the Borrower or any of its Subsidiaries and any
change in the executive officers of the Borrower, and
(d) any Default or Event of Default or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default by the Borrower or any of its Subsidiaries under any
material agreement (other than this Agreement) to which the Borrower or any of
its Subsidiaries is a party or by which the Borrower, any of its Subsidiaries or
any of the Borrower's or any of its Subsidiaries' properties may be bound.
SECTION 11.6. ERISA. As soon as possible and in any event within 30 days
after the Borrower knows, or has reason to know, that:
(a) any ERISA Event with respect to a Benefit Plan has occurred or will
occur, or
(b) the aggregate present value of the Unfunded Vested Accrued Benefits
under all Benefit Plans is equal to an amount in excess of $0, or
(c) the Borrower or any Subsidiary is in default (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan required
by reason of the Borrower's or such Subsidiary's complete or partial withdrawal
(as described in Section 4203 or 4205 of ERISA) from such Multiemployer Plan, a
certificate of the President or a Financial Officer of the Borrower setting
forth the details of such event and the action which is proposed to be taken
with respect thereto, together with any notice or filing which may be required
by the PBGC or other agency of the United States government with respect to such
event.
SECTION 11.7. Revisions or Updates to Schedules. Should any of the
information or disclosures provided on any of the Schedules originally attached
hereto become outdated or incorrect in any material respect, as part of the
officer's certificate required pursuant to SECTION 11.3(B), such revisions or
updates to such Schedule(s) as may be necessary or appropriate to update or
correct such Schedule(s), PROVIDED that no such revisions or updates to any
Schedule(s) shall be deemed to have amended, modified or superseded such
Schedule(s) as attached hereto immediately prior to the
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submission of such revised or updated Schedule(s), or to have cured any breach
of warranty or representation resulting from the inaccuracy or incompleteness of
any such Schedule(s), unless and
until the Required Lenders in their sole and absolute discretion, shall have
accepted in writing such revisions or updates to such Schedule(s).
SECTION 11.8. Subordinated Debt Certificate. Not less than five Business
Days prior to any scheduled payment of any principal of, or interest or other
amounts on, the Subordinated Debt, and as a condition precedent to making such
payment, a certificate of its President or a Financial Officer stating:
(a) that no Default or Event of Default is in existence as of the date
of the certificate or will be in existence as of the date of such payment, both
with and without giving effect to the making of such payment, and
(b) the amount of principal and interest to be paid.
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ARTICLE 12
NEGATIVE COVENANTS
Until the Revolving Credit Facility has been terminated and all the
Secured Obligations have been paid in full, unless the Required Lenders shall
otherwise consent in the manner set forth in SECTION 16.11, the Borrower will
not directly or indirectly and, in the case of SECTIONS 12.2 through 12.14, will
not permit its Subsidiaries to:
SECTION 12.1. Financial Ratios. Permit:
(a) Minimum EBITDA. EBITDA for (i) the first Fiscal Quarter of Fiscal
Year 1998 to be less than $3,500,000, (ii) the first and second Fiscal Quarters
of Fiscal Year 1998 to be less than $7,000,000, (iii) the first, second and
third Fiscal Quarters of Fiscal Year 1998 to be less than $11,000,000, or (iv)
Fiscal Year 1998 or any period of four consecutive Fiscal Quarters ending
thereafter to be less than $15,000,000.
WHERE:
"EBITDA" for any accounting period means Net Income of the Borrower and
its Consolidated Subsidiaries for such period, PLUS the sum of (i) federal and
state income tax expense and (ii) Total Interest Expense, (MINUS any amount in
respect of federal or state income tax refunds or interest income), PLUS the sum
of (x) depreciation expense and (y) amortization expense, in each case of the
Borrower and its Consolidated Subsidiaries for such period to the extent any
such amount was taken into account in computing such Net Income.
AND
"TOTAL INTEREST EXPENSE" for any accounting period, means total
interest expense for Debt of the Borrower and its Consolidated Subsidiaries,
determined in accordance with GAAP, including all capitalized interest in
connection with Capital Expenditures.
(b) Minimum Adjusted Fixed Charge Coverage. The ratio of Adjusted
Operating Cash Flow to Total Debt Service for (i) the first Fiscal Quarter of
Fiscal Year 1998 to be less than .80 to 1, (ii) the first and second Fiscal
Quarters of Fiscal Year 1998 to be less than .80 to 1, (iii) the first, second
and third Fiscal Quarters of Fiscal Year 1998 to be less than .90 to 1 or (iv)
Fiscal Year 1998 or any period of four consecutive fiscal quarters of the
Borrower ending thereafter to be less than 1.00 to 1.:
WHERE:
"ADJUSTED OPERATING CASH FLOW" for any accounting period means EBITDA
for such period, MINUS the sum of (i) cash income taxes paid by the Borrower and
its Consolidated Subsidiaries during such period (net of cash refunds of income
taxes received by them during such period) and (ii) the amount of Capital
Expenditures not financed with Debt (other than Loan proceeds) of the Borrower
and its Consolidated Subsidiaries during such period after deducting all
capitalized interest related thereto.
AND
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"TOTAL DEBT SERVICE" for any accounting period means the sum of (i) repayments
of principal of Funded Debt scheduled to be made during such period and (ii)
Total Interest Expense, MINUS, to the extent included in Total Interest Expense,
any amortization of bond discount on the Senior Sub Debt.
SECTION 12.2. Debt. Create, assume, or otherwise become or remain obligated
in respect of, or permit or suffer to exist or to be created, assumed or
incurred or to be outstanding any Debt, except that this SECTION 12.2 shall not
apply to:
(a) Debt of the Borrower represented by the Loans and the Notes,
(b) other Debt reflected on SCHEDULE 7.1(K), excluding any such Debt
that is to be paid in full on the Effective Date,
(c) Permitted Purchase Money Debt, and
(d) the Subordinated Debt
SECTION 12.3. Guaranties. Become or remain liable with respect to any
Guaranty of any obligation of any other Person.
SECTION 12.4. Investments. Acquire, after the Agreement Date, any Business
Unit or Investment or, after such date, maintain any Investment other than
Permitted Investments and the Rival Note.
SECTION 12.5. Capital Expenditures. Make or incur any Capital Expenditures
in the aggregate in excess of the amount set forth below for the Fiscal Year set
forth opposite such amount:
Fiscal Year Amount
1998 $5,500,000
1999 and thereafter $8,000,000
SECTION 12.6. Restricted Payments and Purchases, Etc. Declare or make any
Restricted Payment or Restricted Purchase, EXCEPT that this SECTION 12.6 shall
not apply to payments made by the Borrower to Mentmore Holdings Corp. in an
amount not greater than $112,500 per month, PLUS reimbursement of reasonable out
of pocket expenses incurred by Mentmore Holdings Corp. in connection with its
services, as compensation for management services provided by Mentmore Holdings
Corp. to the Borrower, which include the services of a chief executive officer.
SECTION 12.7. Merger, Consolidation and Sale of Assets. Merge or
consolidate with any other Person or sell, lease or transfer or otherwise
dispose of all or a substantial portion of its assets to any Person other than
sales of Inventory in the ordinary course of business and the sale and
assignment of Receivables to the Factors pursuant to the terms of their
respective Factoring Agreement.
SECTION 12.8. Transactions with Affiliates. Effect any transaction with any
Affiliate on a basis less favorable to the Borrower than would be the case if
such transaction had been effected with
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a Person not an Affiliate , EXCEPT that this SECTION 12.8 shall not apply to the
Borrower's payments to Mentmore Holdings Corp. permitted pursuant to
SECTION 12.6 or to the Borrower's enforcement or lack of enforcement of the
terms of the Rival Note.
SECTION 12.9. Liens. Create, assume or permit or suffer to exist or to be
created or assumed any Lien on any of the Collateral or its other assets, other
than Permitted Liens.
SECTION 12.10. Capitalized Lease Obligations. Without the consent of the
Required Lenders, which consent shall not be unreasonably withheld, incur or
permit to exist any Capitalized Lease Obligations if such Capitalized Lease
Obligation when added to existing Capitalized Lease Obligations and Permitted
Purchase Money Debt of the Borrower would exceed $2,000,000 in the aggregate.
SECTION 12.11. Operating Leases. Without the consent of the Required
Lenders, enter into any Operating Lease if the aggregate annual rental payable
under all Operating Leases of the Borrower would exceed $6,000,000 in the
aggregate at any time after the Effective Date.
SECTION 12.12. Real Estate Leases. Enter into any real property lease,
including a lease relating to the Real Estate occupied by the Borrower on the
Effective Date, without the prior written consent of the Agent, on behalf of the
Lenders, which consent shall not be unreasonably withheld.
SECTION 12.13. Plans. Permit any condition to exist in connection with any
Plan which might constitute grounds for the PBGC to institute proceedings to
have such Plan terminated or a trustee appointed to administer such Plan, and
any other condition, event or transaction with respect to any Plan which could
result in the incurrence by the Borrower of any material liability, fine or
penalty.
SECTION 12.14. Sales and Leasebacks. Enter into any arrangement with any
Person providing for the Borrower's leasing from such Person any real or
personal property which has been or is to be sold or transferred, directly or
indirectly, by the Borrower to such Person.
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ARTICLE 13
DEFAULT
SECTION 13.1. Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body:
(a) Default in Payment. The Borrower shall default in any payment of
principal of or interest on any Loan, any or any Note when and as due (whether
at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment,
as and when due, of principal of or interest on, any other Secured Obligation,
and such default shall continue for a period of 10 days after written notice
thereof has been given to the Borrower by the Agent.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrower under this Agreement or any Loan Document, or any
amendment hereto or thereto, shall at any time prove to have been incorrect or
misleading in any material respect when made.
(d) Default in Performance. The Borrower shall default in the
performance or observance of any term, covenant, condition or agreement to be
performed by the Borrower, contained in
(i) ARTICLES 8, 9, 11 or 12, or SECTIONS 10.1 (insofar as it
requires the preservation of the corporate existence of the Borrower),
or 10.8, and the Agent shall have delivered to the Borrower written
notice of such default, or
(ii) this Agreement (other than as specifically provided for
otherwise in this SECTION 13.1) and such default shall continue for a
period of ten days after written notice thereof has been given to the
Borrower by the Agent.
(e) Indebtedness Cross-Default.
(iii) The Borrower or any Subsidiary shall fail to pay when
due and payable the principal of or interest on any Debt (other than
the Loans) in an amount in excess of $1,000,000, PROVIDED that the
Borrower's failure to make a payment of the principal of or interest on
the Subordinated Indebtedness on account of the operation of the
subordination provisions thereof shall not be an Event of Default, or
(iv) the maturity of any such Indebtedness shall have (A) been
accelerated in accordance with the provisions of any indenture,
contract or instrument providing for the creation of or concerning such
Indebtedness, or (B) been required to be prepaid prior to the stated
maturity thereof, or
(v) any event shall have occurred and be continuing which
would permit any holder or holders of such Indebtedness, any trustee or
agent acting on behalf of such holder or holders or any other Person so
to accelerate such maturity, and the Borrower shall have failed to cure
such default prior to the expiration of any applicable cure or grace
period.
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(f) Other Cross-Defaults. The Borrower or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any agreement, contract or lease (other than this
Agreement, the Security Documents or any such agreement, contract or lease
relating to Debt) if the existence of any such defaults, singly or in the
aggregate, could in the reasonable judgment of the Agent have a Materially
Adverse Effect on the Borrower or any of its Subsidiaries.
(g) Voluntary Bankruptcy Proceeding. The Borrower or any of its
Subsidiaries shall
(i) commence a voluntary case under the federal bankruptcy
laws (as now or hereafter in effect),
(ii) file a petition seeking to take advantage of any other
laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case
under such bankruptcy laws or other laws,
(iv) apply for or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign,
(v) admit in writing its inability to pay its debts as they
become due,
(vi) make a general assignment for the benefit of creditors,
or
(vii) take any corporate action for the purpose of authorizing
any of the foregoing.
(h) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower or any of its Subsidiaries in any court of
competent jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts,
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of the Borrower, any of its Subsidiaries or of
all or any substantial part of the assets, domestic or foreign, of the
Borrower or any of its Subsidiaries,
and such case or proceeding shall continue undismissed or unstayed for a period
of 60 consecutive calendar days, or an order granting the relief requested in
such case or proceeding against the Borrower or any of its Subsidiaries
(including, but not limited to, an order for relief under such federal
bankruptcy laws) shall be entered.
(i) Failure of Agreements. The Borrower shall challenge the validity
and binding effect of any provision of any Loan Document after delivery thereof
hereunder or shall state in writing its intention to make such a challenge, or
any Security Document, after delivery thereof hereunder, shall
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for any reason (except to the extent permitted by the terms thereof) cease to
create a valid and perfected first priority Lien (except for Permitted Liens)
on, or security interest in, any of the Collateral purported to be covered
thereby.
(j) Judgment. A final, unappealable judgment or order for the payment
of money in an amount that exceeds the uncontested insurance available therefor
by $100,000 or more shall be entered against the Borrower by any court and such
judgment or order shall continue undischarged or unstayed for 10 days.
(k) Attachment. A warrant or writ of attachment or execution or similar
process which exceeds $100,000 in value shall be issued against any property of
the Borrower and such warrant or process shall continue undischarged or unstayed
for 10 days.
(l) Loan Documents. Any event of default under any other Loan Document
shall occur or the Borrower shall default in the performance or observance of
any term, covenant, condition or agreement contained in, or the payment of any
other sum covenanted to be paid by the Borrower under, any other Loan Document;
PROVIDED, HOWEVER that no event of default under any other Loan Document shall
be deemed to have occurred until any notice required under such Loan Document
has been given and any grace period granted under such Loan Document has
expired.
(m) ERISA. Any ERISA Event shall occur with respect to any Benefit
Plan.
(n) Change in Control. There shall have occurred under any indenture or
other instrument evidencing any Debt in excess of $1,000,000 any "change in
control" (as defined in such indenture or other evidence of Debt) obligating the
Borrower to repurchase, redeem or repay, or to offer to repurchase, redeem or
repay, or conferring on the holders of such Debt the right to require the
Borrower to repurchase, redeem or repay, all or any part of the Debt provided
for therein.
SECTION 13.2. Remedies.
(a) Automatic Acceleration and Termination of Facilities. Upon the
occurrence of an Event of Default specified in SECTION 13.1(G) or (H), (i) the
principal of and the interest on the Loans, the Loans and any Note at the time
outstanding, and all other amounts owed to the Agent or the Lenders under this
Agreement or any of the other Loan Documents and all other Secured Obligations,
shall thereupon become due and payable without presentment, demand, protest, or
other notice of any kind, all of which are expressly waived, anything in this
Agreement or any of the Loan Documents to the contrary notwithstanding, and (ii)
the Revolving Credit Facility and the right of the Borrower to request
borrowings under this Agreement shall immediately terminate.
(b) Other Remedies. If any Event of Default shall have occurred, and
during the continuance of any Event of Default, the Agent may, and at the
direction of the Required Lenders in their sole and absolute discretion shall,
do any of the following:
(i) declare the principal of and interest on the Loans and any
Note at the time outstanding, and all other amounts owed to the Agent
or the Lenders under this Agreement or any of the other Loan Documents
and all other Secured Obligations, to be forthwith due and payable,
whereupon the same shall immediately become due and payable without
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presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the Loan Documents
to the contrary notwithstanding;
(ii) terminate the Revolving Credit Facility and any other
right of the Borrower to request borrowings hereunder;
(iii) notify, or request the Borrower to notify, in writing or
otherwise, any Account Debtor or obligor with respect to any one or
more of the Receivables to make payment to the Agent, for the benefit
of the Lenders, or any agent or designee of the Agent, at such address
as may be specified by the Agent and if, notwithstanding the giving of
any notice, any Account Debtor or other such obligor shall make
payments to the Borrower, the Borrower shall hold all such payments it
receives in trust for the Agent, for the account of the Lenders,
without commingling the same with other funds or property of, or held
by, the Borrower, and shall deliver the same to the Agent or any such
agent or designee of the Agent immediately upon receipt by the Borrower
in the identical form received, together with any necessary
endorsements;
(iv) settle or adjust disputes and claims directly with
Account Debtors and other obligors on Receivables for amounts and on
terms which the Agent considers advisable and in all such cases only
the net amounts received by the Agent, for the account of the Lenders,
in payment of such amounts, after deductions of costs and attorneys'
fees, shall constitute Collateral and the Borrower shall have no
further right to make any such settlements or adjustments or to accept
any returns of merchandise;
(v) enter upon any premises in which Inventory or Equipment
may be located and, without resistance or interference by the Borrower,
take physical possession of any or all thereof and maintain such
possession on such premises or move the same or any part thereof to
such other place or places as the Agent shall choose, without being
liable to the Borrower on account of any loss, damage or depreciation
that may occur as a result thereof, so long as the Agent shall act
reasonably and in good faith;
(vi) require the Borrower to and the Borrower shall, without
charge to the Agent or any Lender, assemble the Inventory and Equipment
and maintain or deliver it into the possession of the Agent or any
agent or representative of the Agent at such place or places as the
Agent may designate and as are reasonably convenient to both the Agent
and the Borrower;
(vii) at the expense of the Borrower, cause any of the
Inventory and Equipment to be placed in a public or field warehouse,
and the Agent shall not be liable to the Borrower on account of any
loss, damage or depreciation that may occur as a result thereof, so
long as the Agent shall act reasonably and in good faith;
(viii) without notice, demand or other process, and without
payment of any rent or any other charge, enter any of the Borrower's
premises and, without breach of the peace, until the Agent, on behalf
of the Lenders, completes the enforcement of its rights in the
Collateral, take possession of such premises or place custodians in
exclusive control thereof, remain on such premises and use the same and
any of the Borrower's Equipment, for the purpose of
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(A) completing any work in process, preparing any Inventory for
disposition and disposing thereof, and (B) collecting any Receivable,
and the Agent for the benefit of the Lenders is hereby granted a
license or sublicense and all other rights as may be necessary,
appropriate or desirable to use the Proprietary Rights in connection
with the foregoing, and the rights of the Borrower under all licenses,
sublicenses and franchise agreements shall inure to the Agent for
the benefit of the Lenders (PROVIDED, HOWEVER, that any use of any
federally registered trademarks as to any goods shall be subject to the
control as to the quality of such goods of the owner of such trademarks
and the goodwill of the business symbolized thereby);
(ix) exercise any and all of its rights under any and all of
the Security Documents;
(x) apply any Collateral consisting of cash to the payment of
the Secured Obligations in any order in which the Agent, on behalf of
the Lenders, may elect or use such cash in connection with the exercise
of any of its other rights hereunder or under any of the Security
Documents;
(xi) establish or cause to be established one or more
Lockboxes or other arrangement for the deposit of proceeds of
Receivables, and, in such case, the Borrower shall cause to be
forwarded to the Agent at the Agent's Office, on a daily basis, copies
of all checks and other items of payment and deposit slips related
thereto deposited in such Lockboxes, together with collection reports
in form and substance satisfactory to the Agent; and
(xii) exercise all of the rights and remedies of a secured
party under the Uniform Commercial Code and under any other Applicable
Law, including, without limitation, the right, without notice except as
specified below and with or without taking possession thereof, to sell
the Collateral or any part thereof in one or more parcels at public or
private sale, at any location chosen by the Agent, for cash, on credit
or for future delivery, and at such price or prices and upon such other
terms as the Agent may deem commercially reasonable. The Borrower
agrees that, to the extent notice of sale shall be required by law, at
least ten (10) days' notice to the Borrower of the time and place of
any public sale or the time after which any private sale is to be made
shall constitute reasonable notification, but notice given in any other
reasonable manner or at any other reasonable time shall constitute
reasonable notification. The Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
SECTION 13.3. Application of Proceeds. All proceeds from each sale of, or
other realization upon, all or any part of the Collateral following an Event of
Default shall be applied or paid over as follows:
(a) First: to the payment of all costs and expenses incurred in
connection with such sale or other realization, including reasonable attorneys'
fees,
(b) Second: to the payment of the Secured Obligations identified in
CLAUSES (A), (B) and (C) of the definition "Secured Obligations" (with the
Borrower remaining liable for any deficiency) as the Agent may elect,
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(c) Third: to the payment of the Secured Obligations identified in
CLAUSE (D) of the definition "Secured Obligations" (with the Borrower remaining
liable for any deficiency) to the Lenders ratably in accordance with the amounts
of such Secured Obligations held by each of them, for application to such
Secured Obligations as each such Lender may elect, and
(d) Fourth: the balance (if any) of such proceeds shall be paid to the
Borrower, subject to any duty imposed by law, or otherwise to whomsoever shall
be entitled thereto.
THE BORROWER SHALL REMAIN LIABLE AND WILL PAY, ON DEMAND, ANY DEFICIENCY
REMAINING IN RESPECT OF THE SECURED OBLIGATIONS, TOGETHER WITH INTEREST THEREON
AT A RATE PER ANNUM EQUAL TO THE HIGHEST RATE THEN PAYABLE HEREUNDER ON SUCH
SECURED OBLIGATIONS, WHICH INTEREST SHALL CONSTITUTE PART OF THE SECURED
OBLIGATIONS.
SECTION 13.4. Power of Attorney. In addition to the authorizations granted
to the Agent under SECTION 9.13 or under any other provision of this Agreement
or of any other Loan Document, during the continuance of an Event of Default,
the Borrower hereby irrevocably designates, makes, constitutes and appoints the
Agent (and all Persons designated by the Agent from time to time) as the
Borrower's true and lawful attorney, and agent in fact, and the Agent, or any
agent of the Agent, may, without notice to the Borrower, and at such time or
times as the Agent or any such agent in its sole discretion may determine, in
the name of the Borrower, the Agent or the Lenders,
(c) demand payment of the Receivables,
(d) enforce payment of the Receivables by legal proceedings or
otherwise,
(e) exercise all of the Borrower's rights and remedies with respect to
the collection of Receivables,
(f) settle, adjust, compromise, extend or renew any or all of the
Receivables,
(g) settle, adjust or compromise any legal proceedings brought to
collect the Receivables,
(h) discharge and release the Receivables or any of them,
(i) prepare, file and sign the name of the Borrower on any proof of
claim in bankruptcy or any similar document against any Account Debtor,
(j) prepare, file and sign the name of the Borrower on any notice of
Lien, assignment or satisfaction of Lien, or similar document in connection with
any of the Collateral,
(k) endorse the name of the Borrower upon any chattel paper, document,
instrument, notice, freight bill, bill of lading or similar document or
agreement relating to the Receivables, the Inventory or any other Collateral,
(l) use the stationery of the Borrower and sign the name of the
Borrower to verifications of the Receivables and on any notice to the Account
Debtors,
(m) open the Borrower's mail,
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(n) notify the post office authorities to change the address for
delivery of the Borrower's mail to an address designated by the Agent, and
(o) use the information recorded on or contained in any data processing
equipment and computer hardware and software relating to the Receivables,
Inventory or other Collateral to which the Borrower has access.
SECTION 13.5. Miscellaneous Provisions Concerning Remedies.
(a) Rights Cumulative. The rights and remedies of the Agent and the
Lenders under this Agreement, the Notes and each of the Loan Documents shall be
cumulative and not exclusive of any rights or remedies which it or they would
otherwise have. In exercising such rights and remedies the Agent and the Lenders
may be selective and no failure or delay by the Agent or any Lender in
exercising any right shall operate as a waiver of it, nor shall any single or
partial exercise of any power or right preclude its other or further exercise or
the exercise of any other power or right.
(b) Waiver of Marshalling. The Borrower hereby waives any right to
require any marshalling of assets and any similar right.
(c) Limitation of Liability. Nothing contained in this ARTICLE 13 or
elsewhere in this Agreement or in any of the Loan Documents shall be construed
as requiring or obligating the Agent, any Lender or any agent or designee of the
Agent or any Lender to make any demand, or to make any inquiry as to the nature
or sufficiency of any payment received by it, or to present or file any claim or
notice or take any action, with respect to any Receivable or any other
Collateral or the monies due or to become due thereunder or in connection
therewith, or to take any steps necessary to preserve any rights against prior
parties, and the Agent, the Lenders and their agents or designees shall have no
liability to the Borrower for actions taken pursuant to this ARTICLE 13, any
other provision of this Agreement or any of the Loan Documents so long as the
Agent or such Lender shall act in good faith and in a commercially reasonable
manner.
(d) Appointment of Receiver. In any action under this ARTICLE 13, the
Agent shall be entitled during the continuance of an Event of Default, to the
fullest extent permitted by Applicable Law, to the appointment of a receiver,
without notice of any kind whatsoever, to take possession of all or any portion
of the Collateral and to exercise such power as the court shall confer upon such
receiver.
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ARTICLE 14
ASSIGNMENTS
SECTION 14.1. Successors and Assigns; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Agent, all future holders of the Notes, and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Each Lender may with the consent of the Agent and, so long as no
Default or Event of Default has occurred and is continuing, the Borrower, such
consent not to be unreasonably withheld or delayed, assign to one or more
Eligible Assignees all or a portion of its interests, rights and obligations
under this Agreement (including, without limitation, all or a portion of the
Loans at the time owing to it and the Notes held by it); PROVIDED, HOWEVER, that
(i) each such assignment shall be of a constant, and not a varying, percentage
of all the assigning Lender's rights and obligations under this Agreement, (ii)
the amount of the Commitment of the assigning Lender that is subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent) shall in no event be less
than $2,500,000, (iii) in the case of a partial assignment, the amount of the
Commitment that is retained by the assigning Lender (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Agent) shall in no event be less than $2,500,000, (iv) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and such assignee's pro rata share of the
Agent's syndication expenses, (v) such assignment shall not, without the consent
of the Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the Notes
under the "blue sky" laws of any state, and (vi) the representation contained in
SECTION 14.2 hereof shall be true with respect to any such proposed assignee.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (B) the Lender assignor thereunder shall, to the extent provided
in such assignment, be released from its obligations under this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such Lender
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such Lender assignor
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in
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SECTION 7.1(O) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such Lender assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Agent shall maintain a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders and the Commitment and Commitment Percentage of, and principal
amount of the Loans and owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Lenders may treat each
person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Eligible Assignee together with any Note or Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and is in the form of EXHIBIT E, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register,
(iii) give prompt notice thereof to the Lenders and the Borrower, and (iv)
promptly deliver a copy of such Acceptance and Assignment to the Borrower.
Within five Business Days after receipt of notice, the Borrower shall execute
and deliver to the Agent in exchange for the surrendered Note or Notes a new
Note or Notes to the order of such Eligible Assignee in amounts equal to the
Commitment assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes. Each surrendered Note or Notes shall be cancelled and
returned to the Borrower.
(f) Each Lender may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment hereunder and
the Loans owing to it and the Notes held by it); PROVIDED, HOWEVER, that (i)
each such participation shall be in an amount not less than $2,500,000, (ii)
such Lender's obligations under this Agreement (including, without limitation,
its Commitment hereunder) shall remain unchanged, (iii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iv) such Lender shall remain the holder of the Notes held by it
for all purposes of this Agreement, (v) the Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement;
PROVIDED, that such Lender may agree with any participant that such Lender will
not, without such participant's consent, agree to or approve any waivers or
amendments which
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would reduce the principal of or the interest rate on any Loans, extend the term
or increase the amount of the commitments of such participant, reduce the amount
of any fees to which such participant is entitled, extend any scheduled payment
date for principal or release Collateral securing the Loans (other than
Collateral disposed of pursuant to SECTION 9.7 hereof or otherwise in accordance
with the terms of this Agreement or the Security Documents), and (vi) any such
disposition shall not, without the consent of the Borrower, require any Borrower
to file a registration statement with the Securities and Exchange Commission to
apply to qualify the Loans or the Notes under the "blue sky" laws of any state.
The Lender selling a participation to any bank or other entity that is not an
Affiliate of such Lender shall give prompt notice thereof to the Borrower.
(g) Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this SECTION
14.1, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower, PROVIDED that, prior to any such disclosure,
each such assignee, proposed assignee, participant or proposed participant shall
agree with the Borrower or such Lender (which in the case of an agreement with
only such Lender, the Borrower shall be recognized as a third party beneficiary
thereof) to preserve the confidentiality of any confidential information
relating to the Borrower received from such Lender.
SECTION 14.2. Representation of Lenders. Each Lender hereby represents that
it will make each Loan hereunder as a commercial loan for its own account in the
ordinary course of its business; PROVIDED, HOWEVER, that subject to SECTION 13.1
hereof, the disposition of the Notes or other evidence of the Secured
Obligations held by any Lender shall at all times be within its exclusive
control.
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ARTICLE 15
AGENT
SECTION 15.1. Appointment of Agent. Each of the Lenders hereby irrevocably
designates and appoints BankBoston, N.A. as the Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Agent, as the Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the Agent by
the terms of this Agreement and such other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement or the other Loan Documents, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Agent.
SECTION 15.2. Delegation of Duties. The Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
SECTION 15.3. Exculpatory Provisions. Neither the Agent nor any of its
trustees, officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable to any Lender (or any Lender's participants) for
any action lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or the other Loan Documents (except for its or
such Person's own gross negligence or willful misconduct), or (ii) responsible
in any manner to any Lender (or any Lender's participants) for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or the other Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or the
other Loan Documents or for the existence, value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the other Loan
Documents or any Collateral or Lien or other interest therein or for any failure
of the Borrower to perform its obligations hereunder or thereunder. The Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrower.
SECTION 15.4. Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with SECTION 14.1. The Agent shall be fully justified
in failing or refusing to take any action under this Agreement and the other
Loan Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it
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deems appropriate and shall be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the Notes in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Notes.
SECTION 15.5. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Lenders. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders; PROVIDED
that unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) continue making Revolving Credit Loans to
the Borrower on behalf of the Lenders in reliance on the provisions of SECTION
5.7 and take such other action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
SECTION 15.6. Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, counsel, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial (and other) condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial (and other) condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial (and other) condition
or creditworthiness of the Borrower which may come into the possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
SECTION 15.7. Indemnification. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement or the other Loan
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Documents, or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing; PROVIDED that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Agent's gross negligence or
willful misconduct or resulting solely from transactions or occurrences that
occur at a time after such Lender has assigned all of its interests, rights and
obligations under this Agreement pursuant to SECTION 14.1 or, in the case of a
Lender to which an assignment is made hereunder pursuant to SECTION 14.1, at a
time before such assignment. The agreements in this subsection shall survive the
payment of the Notes, the Secured Obligations and all other amounts payable
hereunder and the termination of this Agreement.
SECTION 15.8. Agent in Its Individual Capacity. The institution at the time
acting as the Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and the Guarantor
and their respective Subsidiaries as if it were not the Agent hereunder. With
respect to its Commitment, the Loans made or renewed by it and any Note issued
to it and any Letter of Credit issued by it, such institution shall have and may
exercise the same rights and powers under this Agreement and the other Loan
Documents and shall be subject to the
same obligations and liabilities as and to the extent set forth herein and in
the other Loan Documents for any other Lender. The terms "Lenders" and "Required
Lenders" or any other term shall, unless the context clearly otherwise
indicates, include such institution in its individual capacity as a Lender or
one of the Required Lenders.
SECTION 15.9. Successor Agent. The Agent may resign as Agent upon 10 days'
notice to the Lenders. If the Agent shall resign as Agent under this Agreement,
then the Required Lenders shall appoint from among the Lenders a successor agent
for the Lenders which successor agent shall be approved by the Borrower (which
approval shall not be unreasonably withheld), whereupon such successor agent
shall succeed to the rights, powers and duties of the Agent, and the term
"Agent" shall mean such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation hereunder as Agent, the provisions of SECTION 15.7 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
SECTION 15.10. Notices from Agent to Lenders. The Agent shall promptly,
upon receipt thereof, forward to each Lender copies of any written notices,
reports or other information supplied to it by the Borrower (but which the
Borrower is not required to supply directly to the Lenders).
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ARTICLE 16
MISCELLANEOUS
SECTION 16.1. Notices.
(a) Method of Communication. Except as specifically provided in this
Agreement or in any of the Loan Documents, all notices and the communications
hereunder and thereunder shall be in writing or by telephone, subsequently
confirmed in writing. Notices in writing shall be delivered personally or sent
by certified or registered mail, postage pre-paid, or by overnight courier,
telex or facsimile transmission and shall be deemed received in the case of
personal delivery, when delivered, in the case of mailing, when receipted for,
in the case of overnight delivery, on the next Business Day after delivery to
the courier, and in the case of telex and facsimile transmission, upon
transmittal, PROVIDED that in the case of notices to the Agent, notice shall be
deemed to have been given only when such notice is actually received by the
Agent. A telephonic notice to the Agent, as understood by the Agent, will be
deemed to be the controlling and proper notice in the event of a discrepancy
with or failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address of which all the other parties are
notified in writing by such first party:
If to the Borrower: Texfi Industries, Inc.
5400 Glenwood Avenue, Suite 215
Raleigh, North Carolina 27612
Attn: Dane L. Vincent
Facsimile No.(919) 783-4739
with a copy to: Winston & Strawn
200 Park Avenue
New York, New York 10166
Attn: Jonathan Goldstein, Esq.
Facsimile No.(212) 294-4700
If to the Agent: BankBoston, N.A.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Pamela D. Petrick
Facsimile No.: (770) 393-4166
If to a Lender: At the address of such Lender set forth on
the signature pages hereof.
(c) Agent's Office. The Agent hereby designates its office located at
100 Federal Street, Boston, Massachusetts 02110, or any subsequent office which
shall have been specified for such purpose by written notice to the Borrower, as
the office to which payments due are to be made and at which Loans will be
disbursed.
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SECTION 16.2. Expenses. The Borrower agrees to pay or reimburse on demand
all costs and expenses incurred by the Agent or any Lender, including, without
limitation, the reasonable fees and disbursements of counsel, in connection with
(a) the negotiation, preparation, execution, delivery, administration,
enforcement and termination of this Agreement and each of the other Loan
Documents, whenever the same shall be executed and delivered, including, without
limitation
(i) the out-of-pocket costs and expenses incurred in
connection with the administration and interpretation of this Agreement
and the other Loan Documents;
(ii) the costs and expenses of appraisals of the Collateral;
(iii) the costs and expenses of lien and title searches and
title insurance;
(iv) the costs and expenses of environmental reports with
respect to the Real Estate;
(v) taxes, fees and other charges for recording the Mortgages,
filing the Financing Statements and continuations and the costs and
expenses of taking other actions to perfect, protect, and continue the
Security Interests;
PROVIDED, HOWEVER, that the Borrower shall not be required to pay the expenses
of any Person which becomes a Lender more than 90 days after the Effective Date
incurred in connection with such Person's so becoming a Lender;
(b) the preparation, execution and delivery of any waiver, amendment,
supplement or consent by the Agent and the Lenders relating to this Agreement or
any of the Loan Documents;
(c) sums paid or incurred to pay any amount or take any action required
of the Borrower under the Loan Documents that the Borrower fails to pay or take;
(d) costs of inspections and verifications of the Collateral,
including, without limitation, standard per diem fees charged by the Agent or
the Lenders, travel, lodging, and meals for inspections of the Collateral and
the Borrower's operations and books and records by the Agent's and/or the
Lenders' agents up to two times per year and whenever an Event of Default
exists;
(e) costs and expenses of forwarding loan proceeds, collecting checks
and other items of payment, and establishing and maintaining each Controlled
Disbursement Account, Agency Account and Lockbox;
(f) costs and expenses of preserving and protecting the Collateral;
(g) consulting, after the occurrence of a Default, with one or more
Persons, including appraisers, accountants and lawyers, concerning the value of
any Collateral for the Secured Obligations or related to the nature, scope or
value of any right or remedy of the Agent or any Lender hereunder or under any
of the Loan Documents, including any review of factual matters in connection
therewith, which expenses shall include the fees and disbursements of such
Persons; and
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(h) costs and expenses paid or incurred to obtain payment of the Secured
Obligations, enforce the Security Interests, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions of the Loan Documents, or to
prosecute or defend any claim in any way arising out of, related to or connected
with, this Agreement or any of the Loan Documents, which expenses shallinclude
the reasonable fees and disbursements of counsel and of experts and other
consultants retained by the Agent or any Lender.
The foregoing shall not be construed to limit any other provisions of the Loan
Documents regarding costs and expenses to be paid by the Borrower. The Borrower
hereby authorizes the Agent and the Lenders to debit the Borrower's Loan
Accounts (by increasing the principal amount of the Revolving Credit Loan) in
the amount of any such costs and expenses owed by the Borrower when due.
SECTION 16.3. Stamp and Other Taxes. The Borrower will pay any and all
stamp, registration, recordation and similar taxes, fees or charges and shall
indemnify the Agent and the Lenders against any and all liabilities with respect
to or resulting from any delay in the payment or omission to pay any such taxes,
fees or charges, which may be payable or determined to be payable in connection
with the execution, delivery, performance or enforcement of this Agreement and
any of the Loan Documents or the perfection of any rights or security interest
thereunder, including, without limitation, the Security Interest.
SECTION 16.4. Setoff. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, during the
continuance of any Event of Default, each Lender, any participant with such
Lender in the Loans and each Affiliate of each Lender are hereby authorized by
the Borrower at any time or from time to time, without notice to the Borrower or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by any Lender or any Affiliate of any Lender or any participant to
or for the credit or the account of the Borrower against and on account of the
Secured Obligations irrespective or whether or not
(a) the Agent or such Lender shall have made any demand under this
Agreement or any of the Loan Documents, or
(b) the Agent or such Lender shall have declared any or all of the
Secured Obligations to be due and payable as permitted by SECTION 13.2 and
although such Secured Obligations shall be contingent or unmatured.
SECTION 16.5. Litigation. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING OF ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE
COMMENCED BY OR AGAINST THE BORROWER, THE AGENT OR SUCH LENDER ARISING OUT OF
THIS AGREEMENT, THE COLLATERAL OR ANY ASSIGNMENT THEREOF OR BY REASON OF ANY
OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE BORROWER AND THE AGENT OR ANY
LENDER OF ANY KIND OR NATURE. THE BORROWER, THE AGENT AND THE LENDERS HEREBY
AGREE THAT THE FEDERAL COURT OF THE NORTHERN DISTRICT OF GEORGIA OR, AT THE
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OPTION OF THE AGENT OR ANY LENDER, ANY COURT IN WHICH THE AGENT OR SUCH LENDER
SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY, SHALL HAVE NONEXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE BORROWER
AND THE AGENT OR SUCH LENDER, PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE LOAN DOCUMENTS OR TO ANY MATTER ARISING THEREFROM. THE BORROWER
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS, HEREBY WAIVING PERSONAL SERVICE OF THE
SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN AND AGREEING
THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER AT THE ADDRESS OF
THE BORROWER SET FORTH IN SECTION 16.1. SHOULD THE BORROWER FAIL TO APPEAR OR
ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30)
DAYS AFTER THE MAILING THEREOF, IT SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE NONEXCLUSIVE CHOICE OF FORUM SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY
JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT
TO ENFORCE SAME IN ANY APPROPRIATE JURISDICTION.
SECTION 16.6. Waiver of Rights. THE BORROWER HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY WAIVES ALL RIGHTS WHICH THE BORROWER HAS UNDER
CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR
PROVISION OF APPLICABLE LAW TO NOTICE AND TO A JUDICIAL HEARING PRIOR TO THE
ISSUANCE OF A WRIT OF POSSESSION ENTITLING THE AGENT OR ANY LENDER, OR THE
SUCCESSORS AND ASSIGNS OF THE AGENT OR SUCH LENDER TO POSSESSION OF THE
COLLATERAL UPON EVENT OF DEFAULT. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING AND WITHOUT LIMITING ANY OTHER RIGHT WHICH THE AGENT OR THE LENDERS
MAY HAVE, THE BORROWER CONSENTS THAT IF LENDER FILES A PETITION FOR AN IMMEDIATE
WRIT OF POSSESSION IN COMPLIANCE WITH SECTIONS 44-14-261 AND 44-14-262 OF THE
OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR PROVISION OF APPLICABLE LAW, AND
THIS WAIVER OR A COPY HEREOF IS ALLEGED IN SUCH PETITION AND ATTACHED THERETO,
THE COURT BEFORE WHICH SUCH PETITION IS FILED MAY DISPENSE WITH ALL RIGHTS AND
PROCEDURES HEREIN WAIVED AND MAY ISSUE FORTHWITH AN IMMEDIATE WRIT OF POSSESSION
IN ACCORDANCE WITH CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR IN
ACCORDANCE WITH ANY SIMILAR PROVISION OF APPLICABLE LAW, WITHOUT THE NECESSITY
OF AN ACCOMPANYING BOND AS OTHERWISE REQUIRED BY SECTION 44-14-263 OF THE
OFFICIAL CODE OF GEORGIA OR BY ANY SIMILAR PROVISION UNDER APPLICABLE LAW. THE
BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ AND FULLY UNDERSTANDS THE TERMS OF
THIS WAIVER AND THE EFFECT HEREOF.
SECTION 16.7. Consent to Advertising and Publicity. With the prior written
consent of the Borrower, which consent shall not be unreasonably withheld, the
Agent, on behalf of the Lenders,
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may issue and disseminate to the public information describing the credit
accommodation entered into pursuant to this Agreement, including the name and
address of the Borrower, the amount, interest rate, maturity, collateral for and
a general description of the credit facilities provided hereunder and of the
Borrower's business.
SECTION 16.8. Reversal of Payments. The Agent and each Lender shall have
the continuing and exclusive right to apply, reverse and re-apply any and all
payments to any portion of the Secured Obligations in a manner consistent with
the terms of this Agreement. To the extent the Borrower makes a payment or
payments to the Agent, for the account of the Lenders, or any Lender receives
any payment or proceeds of the Collateral for the Borrower's benefit, which
payment(s) or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, state
or federal law, common law or equitable cause, then, to the extent of such
payment or proceeds received, the Secured Obligations or part thereof intended
to be satisfied shall be revived and continued in full force and effect, as if
such payment or proceeds had not been received by the Agent or such Lender.
SECTION 16.9. Injunctive Relief. The Borrower recognizes that, in the event
the Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy at law may prove to be inadequate
relief to the Agent and the Lenders; therefore, the Borrower agrees that if any
Event of Default shall have occurred and be continuing, the Agent and the
Lenders, if the Agent or any Lender so requests, shall be entitled to temporary
and permanent injunctive relief without the necessity of proving actual damages.
SECTION 16.10. Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower to determine whether it is in compliance with any covenant contained
herein, shall, unless this Agreement otherwise provides or unless Required
Lenders shall otherwise consent in writing, be performed in accordance with
GAAP.
SECTION 16.11. Amendments.
(a) Except as set forth in SUBSECTION (B) below, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may
be amended or waived, and any departure therefrom may be consented to by the
Required Lenders, if, but only if, such amendment, waiver or consent is in
writing signed by the Required Lenders and, in the case of an amendment (other
than an amendment described in SECTION 16.11(D)), by the Borrower, PROVIDED that
no such amendment, unless consented to by the Agent, shall alter or affect the
rights or responsibilities of the Agent, and in any such event, the failure to
observe, perform or discharge any such term, covenant, agreement or condition
(whether such amendment is executed or such waiver or consent is given before or
after such failure) shall not be construed as a breach of such term, covenant,
agreement or condition or as a Default or an Event of Default. Unless otherwise
specified in such waiver or consent, a waiver or consent given hereunder shall
be effective only in the specific instance and for the specific purpose for
which given. In the event that any such waiver or amendment is requested by the
Borrower, the Agent and the Lenders may require and charge a fee in connection
therewith and consideration thereof in such amount as shall be determined by the
Agent and the Required Lenders in their discretion.
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(b) Without the prior unanimous written consent of the Lenders,
(i) no amendment, consent or waiver shall (A) affect the
amount or extend the time of the obligation of any Lender to make Loans
or (B) extend the originally scheduled time or times of payment of the
principal of any Loan or Loan or (C) alter the time or times of payment
of interest on any Loan or Loan or of any fees payable for the account
of the Lenders or (D) alter the amount of the principal of any Loan or
Loan or the rate of interest thereon or (E) alter the amount of any
commitment fee or other fee payable hereunder for the account of the
Lenders or (F) permit any subordination of the principal of or interest
on any Loan or Loan or (G) permit the subordination of the Security
Interests in any Collateral,
(ii) no Collateral having an aggregate value greater than
$500,000 shall be released by the Agent in any 12-month period other
than as specifically permitted in this Agreement or the Security
Documents nor shall any Collateral be released at a time when the Agent
is entitled to exercise remedies hereunder upon default, nor shall the
Borrower or the Guarantor be released from its liability for the
Secured Obligations,
(iii) except to the extent expressly provided in SECTION 5.7,
the definition "Borrowing Base" shall not be amended,
(iv) none of the provisions of this SECTION 16.11, the
definitions "Lenders" or "Required Lenders", or the provisions of
ARTICLE 13 shall be amended, and
(v) neither the Agent nor any Lender shall consent to any
amendment to or waiver of the amortization, deferral or subordination
provisions of the Subordinated Debt or any other instrument or
agreement evidencing or relating to obligations of the Borrower that
are expressly subordinate to any of the Secured Obligations if such
amendment or waiver would be adverse to the Lenders in their capacities
as Lenders hereunder;
PROVIDED, HOWEVER, that anything herein to the contrary notwithstanding, the
Required Lenders shall have the right to waive any Default or Event of Default
and the consequences hereunder of such Default or Event of Default provided only
that such Default or Event of Default does not arise under SECTION 13.1(G) OR
(H) or out of a breach of or failure to perform or observe any term, covenant or
condition of this Agreement or any other Loan Document (other than the
provisions of ARTICLE 13 of this Agreement) the amendment of which requires the
unanimous consent of the Lenders. The Required Lenders shall have the right,
with respect to any Default or Event of Default that may be waived by them, to
enter into an agreement with the Borrower or the Guarantor providing for the
forbearance from the exercise of any remedies provided hereunder or under the
other Loan Documents without thereby waiving any such Default or Event of
Default.
(c) The making of Loans hereunder by the Lenders during the existence
of a Default or Event of Default shall not be deemed to constitute a waiver of
such Default or Event of Default.
(d) Notwithstanding any provision of this Agreement or the other Loan
Documents to the contrary, no consent, written or otherwise, of the Borrower
shall be necessary or required in connection with any amendment to ARTICLE 15 or
SECTION 5.8, and any amendment to such provisions
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may be effected solely by and among the Agent and the Lenders, PROVIDED that no
such amendment shall impose any obligation on the Borrower.
SECTION 16.12. Assignment. All the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights under this Agreement.
SECTION 16.13. Performance of Borrower's Duties.
(a) The Borrower's obligations under this Agreement and each of the
Loan Documents shall be performed by the Borrower at its sole cost and expense.
(b) If the Borrower shall fail to do any act or thing which it has
covenanted to do under this Agreement or any of the Loan Documents, the Agent,
on behalf of the Lenders, may (but shall not be obligated to) do the same or
cause it to be done either in the name of the Agent or the Lenders or in the
name and on behalf of the Borrower, and the Borrower hereby irrevocably
authorizes the Agent so to act.
SECTION 16.14. Indemnification. The Borrower agrees to reimburse the Agent
and the Lenders for all costs and expenses, including reasonable counsel fees
and disbursements, incurred, and to indemnify and hold the Agent and the Lenders
harmless from and against all losses suffered by, the Agent or any Lender in
connection with
(a) the exercise by the Agent or any Lender of any right or remedy
granted
to it under this Agreement or any of the Loan Documents,
(b) any claim, and the prosecution or defense thereof, arising out of
or in any way connected with this Agreement or any of the Loan Documents, and
(c) the collection or enforcement of the Secured Obligations or any of
them, other than such costs, expenses and liabilities arising out of the Agent's
or any Lender's gross negligence or willful misconduct.
SECTION 16.15. All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Agent and the Lenders and any Persons
designated by the Agent or the Lenders pursuant to any provisions of this
Agreement or any of the Loan Documents shall be deemed coupled with an interest
and shall be irrevocable so long as any of the Secured Obligations remain unpaid
or unsatisfied.
SECTION 16.16. Survival. Notwithstanding any termination of this
Agreement,
(a) until all Secured Obligations have been irrevocably paid in full or
otherwise satisfied, the Agent, for the benefit of the Lenders, shall retain its
Security Interest and shall retain all rights under this Agreement and each of
the Security Documents with respect to such Collateral as fully as though this
Agreement had not been terminated,
(b) the indemnities to which the Agent and the Lenders are entitled
under the provisions of this ARTICLE 16 and any other provision of this
Agreement and the Loan Documents shall continue
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in full force and effect and shall protect the Agent and the Lenders against
events arising after such termination as well as before, and
(c) in connection with the termination of this Agreement and the release and
termination of the Security Interests, the Agent, on behalf of itself as agent
and the Lenders, may require such assurances and indemnities as it shall
reasonably deem necessary or appropriate to protect the Agent and the Lenders
against loss on account of such release and termination, including, without
limitation, with respect to credits previously applied to the Secured
Obligations that may subsequently be reversed or revoked.
SECTION 16.17. Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 16.18. Severability of Provisions. Any provision of this Agreement
or any Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remainder of such
provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 16.19. Governing Law. This Agreement, the Notes and the Security
Documents (except to the extent otherwise expressly set forth therein) shall be
deemed to have been made in the State of Georgia and the validity, construction,
interpretation and enforcement hereof and thereof and the rights of the parties
hereto and thereto shall be determined under, governed by and construed in
accordance with the internal laws of the State of Georgia, without regard to
principles of conflicts of law, except that the waiver contained in the first
sentence of SECTION 16.5 shall be construed in accordance with and governed by
the internal laws of the jurisdiction in which any such action or proceeding is
commenced.
SECTION 16.20. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 16.21. Reproduction of Documents. This Agreement, each of the Loan
Documents and all documents relating thereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed, (b)
documents received by the Agent or any Lender, and (c) financial statements,
certificates and other information previously or hereafter furnished to the
Agent or any Lender, may be reproduced by the Agent or such Lender by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and such Person may destroy any original document so produced.
Each party hereto stipulates that, to the extent permitted by Applicable Law,
any such reproduction shall be as admissible in evidence as the original itself
in any judicial or administrative proceeding (whether or not the original shall
be in existence and whether or not such reproduction was made by the Agent or
such Lender in the regular course of business), and any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in
evidence.
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SECTION 16.22. Term of Agreement. This Agreement shall remain in effect
from the Agreement Date through the Termination Date and thereafter until all
Secured Obligations shall have been irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
SECTION 16.23. Increased Capital. If any Lender shall have determined that
the adoption of any applicable law, rule, regulation, guideline, directive or
request (whether or not having force of law) regarding capital requirements for
banks or bank holding companies, or any change therein or in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by such Lender with any of the foregoing imposes or increases a
requirement by such Lender to allocate capital resources to such Lender's
Commitment to make Loans hereunder which has or would have the effect of
reducing the return on such Lender's capital to a level below that which such
Lender could have achieved (taking into consideration such Lender's then
existing policies with respect to capital adequacy and assuming full utilization
of such Lender's capital) but for such adoption, change or compliance by any
amount deemed by such Lender to be material: (i) such Lender shall promptly
after its determination of such occurrence give notice thereof to the Borrower;
and (ii) the Borrower shall pay to such Lender as an additional fee from time to
time on demand such amount as such Lender certifies to be the amount that will
compensate it for such reduction. A certificate of such Lender claiming
compensation under this SECTION 16.23 shall be conclusive in the absence of
manifest error. Such certificate shall set forth the nature of the occurrence
giving rise to such compensation, the additional amount or amounts to be paid to
it hereunder and the method by which such amounts were determined. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
SECTION 16.24. Pro-Rata Participation.
(a) Each Lender agrees that if, as a result of the exercise of a right
of setoff, banker's lien or counterclaim or other similar right or the receipt
of a secured claim it receives any payment in respect of the Secured
Obligations, it shall promptly notify the Agent thereof (and the Agent shall
promptly notify the other Lenders). If, as a result of such payment, such Lender
receives a greater percentage of the Secured Obligations owed to it under this
Agreement than the percentage received by any other Lender, such Lender shall
purchase a participation (which it shall be deemed to have purchased
simultaneously upon the receipt of such payment) in the Secured Obligations then
held by such other Lenders so that all such recoveries of principal and interest
with respect to all Secured Obligations owed to each Lender shall be pro rata on
the basis of its respective amount of the Secured Obligations owed to all
Lenders, PROVIDED that if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered by or on behalf of
the Borrower from such Lender, such purchase shall be rescinded and the purchase
price paid for such participation shall be returned to such Lender to the extent
of such recovery, but without interest.
(b) Each Lender which receives such a secured claim shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this SECTION
16.24 to share in the benefits of any recovery on such secured claim.
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(c) The Borrower expressly consents to the foregoing arrangements and
agrees that any holder of a participation in any Secured Obligation so purchased
or otherwise acquired of which the Borrower has received notice may exercise any
and all rights of banker's lien, set-off or counterclaim with respect to any and
all monies owing by the Borrower to such holder as fully as if such holder were
a holder of such Secured Obligation in the amount of the participation held by
such holder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers in several counterparts all as of the day and
year first written above.
BORROWER:
TEXFI INDUSTRIES, INC.
[Corporate Seal]
Attest: By: /s/ Dane L. Vincent
------------------------
Dane L. Vincent
By: /s/ Paige Clark Dickerson Vice President, CFO
-------------------------
Paige Dickerson
Assistant Secretary
AGENT:
BANKBOSTON, N.A.
By: /s/ Pamela D. Petrick
----------------------
Pamela D. Petrick
Vice President
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LENDERS:
BANKBOSTON, N.A.
By: /s/ Pamela D. Petrick
------------------------
Pamela D. Petrick
Vice President
Address: 115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Pamela D. Petrick
Facsimile No.: (770) 393-4166
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THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Peter B. Cooney
--------------------------------
Name: Peter B. Cooney
--------------------------
Title: V.P.
--------------------------
Address: Two First Union Center
P.O. Box 31307
Charlotte, NC 28231-1307
Attn: Keri Wass
Facsimile No.: (704) 339-2910
<PAGE>
NATIONAL BANK OF CANADA
By: /s/ Charles Collie
------------------------------
Name: Charles Collie
------------------------
Title: Vice President and Manager
------------------------
By: /s/ Alex M. Council IV
------------------------------
Name: Alex M. Council IV
------------------------
Title: Vice President
------------------------
Address: Two First Union Center
Suite 2020
Charlotte, NC 28282
Attn: Charles Collie
Facsimile No.: (704) 335-0570
<PAGE>
<PAGE>
[Logo] BancBoston Leasing
a BANK OF BOSTON company
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT, dated as of the 31st day of July, 1997,
("Lease Agreement") is made at Boston, Massachusetts by and between BancBoston
Leasing Inc. ("Lessor"), a Massachusetts corporation with its principal place of
business at 100 Federal Street, Boston, Massachusetts 02110 and TEXFI
Industries, Inc. ("Lessee"), a Delaware corporation with its principal place of
business at 5400 Glenwood Avenue, Raleigh, North Carolina 27612.
IN CONSIDERATION OF the mutual promises and covenants contained herein,
Lessor and Lessee hereby agree as follows:
1. Property Leased. At the request of Lessee and subject to the terms and
conditions of this Lease Agreement, Lessor shall lease to Lessee and Lessee
shall lease from Lessor such personal property ("Equipment") as may be mutually
agreed upon by Lessor and Lessee. The Equipment shall be selected by or ordered
at the request of Lessee, identified in one or more equipment schedules
substantially in the form of Exhibit A attached hereto ("Equipment Schedule")
and accepted by Lessee in one or more certificates of acceptance ("Certificate
of Acceptance") in the form of Exhibit B attached hereto. Each Equipment
Schedule executed by Lessor and Lessee and each Certificate of Acceptance
executed by Lessee shall constitute a part of this Lease Agreement.
2. Certain Definitions.
2.1 The "Acquisition Cost" shall mean the total cost of the Equipment paid
by Lessor as set forth in the applicable Equipment Schedule.
2.2 The "Commencement Date" shall mean the date on which the Equipment
identified in the applicable Equipment Schedule is accepted and placed in
service by Lessee under this Lease Agreement. Each Commencement Date shall be
evidenced by the Certificate of Acceptance applicable to such Equipment
Schedule.
2.3 The "Rent Start Date" shall mean either (i) the first day of the month
following the month in which the Commencement Date occurs or (ii) the
Commencement Date, if the Commencement Date occurs on the first day of the
month.
2.4 The "Monthly Rent" shall mean the amount set forth in the applicable
Equipment Schedule as Monthly Rent for the Equipment identified on such
Equipment Schedule.
2.5 The "Daily Rent" shall mean one-thirtieth (1/30) of the Monthly Rent.
2.6 The words "herein", "hereof", and "hereunder" shall refer to this
Lease Agreement as a whole and not to any particular section. All other
capitalized terms defined in this Lease Agreement shall have the meanings
assigned thereto.
3. Initial Term of Lease; Payment of Rent.
3.1 The term of lease for the Equipment ("Initial Term") shall begin on
the Commencement Date set forth in the applicable Certificate of Acceptance and
shall continue during and until the expiration of the number of full calendar
months set forth in the applicable Equipment Schedule, measured from the Rent
Start Date. The Initial Term may not be cancelled or terminated except as set
forth in Section 10.2 below.
3.2 At the expiration of the Initial Term, Lessor and Lessee may extend
the lease of the Equipment for any period as they may agree upon in writing
("Extended Term") at the then fair market rental value of the Equipment, as
determined in good faith by Lessor.
3.3 Aggregate Daily Rent shall be due and payable by Lessee on the Rent
Start Date in an amount equal to the Daily Rent multiplied by the actual number
of days elapsed from, and including, the Commencement Date to, but excluding,
the Rent Start Date. The Monthly Rent shall be due and payable on the Rent Start
Date and, thereafter on the first day of each month of the Initial Term or any
Extended Term. All Daily Rents and Monthly Rents shall be paid to Lessor at its
office in Boston, Massachusetts.
4. Acceptance of Equipment; Exclusion of Warranties.
4.1 Lessee shall signify its acceptance of the Equipment identified in the
applicable Equipment Schedule by promptly executing and delivering to Lessor a
Certificate of Acceptance. Lessee acknowledges that its execution and delivery
of the Certificate of Acceptance shall conclusively establish, as between Lessor
and Lessee, that the Equipment has been inspected by Lessee, is in good repair
and working order, is of the design, manufacture and capacity selected by
Lessee, and is accepted by Lessee under this Lease Agreement.
4.2 In the event the Equipment is ordered by Lessor from a manufacturer or
supplier at the request of Lessee, Lessor shall not be required to pay the
Acquisition Cost for such Equipment unless and until the applicable Certificate
of Acceptance has been received by Lessor. Lessee hereby agrees to indemnify,
defend and hold Lessor harmless from any liability to any manufacturer or
supplier arising from the failure of Lessee to lease any Equipment which is
ordered by Lessor at the request of Lessee or for which Lessor has assumed an
obligation to purchase.
4.3 Lessor leases the Equipment to Lessee and Lessee leases the Equipment
from Lessor "AS IS" and "WITH ALL FAULTS". Lessee hereby acknowledges that (i)
Lessor is not a manufacturer, supplier or dealer of such Equipment nor an agent
thereof; and (ii) LESSOR HAS NOT MADE, DOES NOT MAKE, AND HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ITS DESIGN, CAPACITY, CONDITION,
MERCHANTABILITY, OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE. Lessee
further acknowledges that Lessor is not responsible for any repairs,
maintenance, service,
<PAGE>
latent or other defects in the Equipment or in the operation thereof, or for
compliance of any Equipment with requirements of any laws, ordinances,
governmental rules or regulations including, but not limited to, laws with
respect to environmental matters, patent, trademark, copyright or trade secret
infringement, or for any direct or consequential damages arising out of the use
of or inability to use the Equipment.
4.4 Provided no Event of Default, as defined in Section 16 below, has
occurred and is continuing, Lessor agrees to cooperate with Lessee, at the sole
cost and expense of Lessee, in making any claim against a manufacturer or
supplier of the Equipment arising from a defect in such Equipment. At the
request of Lessee, Lessor shall assign to Lessee all warranties on the Equipment
available from any manufacturer or supplier to the full extent permitted by the
terms of such warranties and by applicable law.
5. Ownership; Inspection; Maintenance and Use.
5.1 The Equipment shall at all times be the sole and exclusive property of
Lessor. Any Equipment subject to titling and registration laws shall be titled
and registered by Lessee on behalf of and in the name of Lessor at the sole cost
and expense of Lessee. Lessee shall cooperate with and provide Lessor with any
information or documents necessary for titling and registration of the
Equipment. Upon the request of Lessor, Lessee shall execute any documents or
instruments which may be necessary or appropriate to confirm, to record or to
give notice of the ownership of the Equipment by Lessor including, but not
limited to, financing statements under the Uniform Commercial Code. Lessee, at
the request of Lessor, shall affix to the Equipment, in a conspicuous place, any
label, plaque or other insignia supplied by Lessor designating the ownership of
the Equipment by Lessor.
5.2 The Equipment shall be located at the address specified in the
applicable Equipment Schedule and shall not be removed therefrom without the
prior written consent of Lessor. Lessor, its agents or employees shall have the
right to enter the premises of Lessee, upon reasonable notice and during normal
business hours, for the purpose of inspecting the Equipment.
5.3 Lessee shall pay all costs, expenses, fees and charges whatsoever
incurred in connection with the use and operation of the Equipment. Lessee
shall, at all times and at its own expense, keep the Equipment in good repair
and working order, reasonable wear and tear excepted. Any maintenance contract
required by a manufacturer or supplier for the care and upkeep of the Equipment
shall be entered into by Lessee at its sole cost and expense. Lessee shall
permit the use and operation of the Equipment only by personnel authorized by
Lessee and shall comply with all laws, ordinances or governmental rules and
regulations relating to the use and operation of the Equipment.
6. Alterations and Modifications. Lessee may make, or cause to be made on
its behalf, any improvement, modification or addition to the Equipment with the
prior written consent of Lessor, provided, however, that such improvement,
modification or addition is readily removable without causing damage to or
impairment of the functional effectiveness of the Equipment. To the extent that
such improvement, modification or addition is not so removable, it shall
immediately become the property of Lessor and thereupon shall be considered
Equipment for all purposes of this Lease Agreement.
7. Quiet Enjoyment; No Defense, Set-Offs or Counterclaims.
7.1 Provided no Event of Default, as defined in Section 16 below, has
occurred and is continuing, Lessee shall have the quiet enjoyment and use of the
Equipment in the ordinary course of its business during the Initial Term or any
Extended Term without interruption by Lessor or any person or entity claiming
through or under Lessor.
7.2 Lessee acknowledges and agrees that ANY DAMAGE TO OR LOSS,
DESTRUCTION, OR UNFITNESS OF, OR DEFECT IN THE EQUIPMENT, OR THE INABILITY OF
LESSEE TO USE THE EQUIPMENT FOR ANY REASON WHATSOEVER, SHALL NOT (i) GIVE RISE
TO ANY DEFENSE, COUNTERCLAIM, OR RIGHT OF SET-OFF AGAINST LESSOR, OR (ii) PERMIT
ANY ABATEMENT OR RECOUPMENT OF, OR REDUCTION IN DAILY OR MONTHLY RENT, OR (iii)
RELIEVE LESSEE OF THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS LEASE AGREEMENT
INCLUDING, BUT NOT LIMITED TO, ITS OBLIGATION TO PAY THE FULL AMOUNT OF DAILY
RENT AND MONTHLY RENT, WHICH OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL, unless
and until this Lease Agreement is terminated with respect to such Equipment in
accordance with the provisions of Section 10.2 below. Any claim that Lessee may
have which arises from a defect in or deficiency of the Equipment shall be
brought solely against the manufacturer or supplier of the Equipment and Lessee
shall, notwithstanding any such claim, continue to pay Lessor all amounts due
and to become due under this Lease Agreement.
8. Adverse Claims and Interests.
8.1 Except for any liens, claims, mortgages, pledges, encumbrances or
security interests created by Lessor, Lessee shall keep the Equipment, at all
times, free and clear from all liens, claims, mortgages, pledges, encumbrances
and security interests and from all levies, seizures and attachments. Without
limitation of the covenants and obligations of Lessee set forth in the preceding
sentence, Lessee shall immediately notify Lessor in writing of the imposition of
any prohibited lien, claim, levy or attachment on or seizure of the Equipment at
which time Lessee shall provide Lessor with all relevant information in
connection therewith.
8.2 Lessee agrees that the Equipment shall be and at all times shall
remain personal property. Accordingly, Lessee shall take such steps as may be
necessary to prevent any person from acquiring, having or retaining any rights
in or to the Equipment by reason of its being affixed or attached to real
property.
9. Indemnities; Payment of Taxes.
9.1 Lessee hereby agrees to indemnify, defend and hold harmless Lessor,
its agents, employees, successors and assigns from and against any and all
claims, actions, suits, proceedings, costs, expenses, damages and liabilities
whatsoever arising out of or in connection with the manufacture, ordering,
selection, specifications, availability, delivery, titling, registration,
rejection, installation, possession, maintenance, ownership, use, leasing,
operation or return of the Equipment including, but not limited to, any claim or
demand based upon any STRICT OR ABSOLUTE LIABILITY IN TORT and upon any
infringement or alleged infringement of any patent, trademark, trade secret,
license, copyright or otherwise. All costs and expenses incurred by Lessor in
connection with any of the foregoing including, but not limited to, reasonable
legal fees, shall be paid by Lessee on demand.
9.2 Lessee hereby agrees to indemnify, defend and hold Lessor harmless
against all Federal, state and local taxes, assessments, licenses, withholdings,
levies, imposts, duties, assessments, excise taxes, registration fees and other
governmental fees and charges whatsoever, which are imposed, assessed or levied
on or with respect to the Equipment or its use or related in any way to this
Lease Agreement ("Tax Assessments"), except for taxes on or measured by the net
income of Lessor determined substantially in the same manner as under the
Internal Revenue Code of 1986, as amended. Lessee shall file all returns,
reports or other such documents required in connection with the Tax Assessments
and shall provide
<PAGE>
Lessor with copies thereof. If, under local law or custom, Lessee is not
authorized to make the filings required by a taxing authority, Lessee shall
notify Lessor in writing and Lessor shall thereupon file such returns, reports
or documents. Without limiting any of the foregoing, Lessee shall indemnify,
defend and hold Lessor harmless from all penalties, fines, interest payments,
claims and expenses including, but not limited to, reasonable legal fees,
arising from any failure of Lessee to comply with the requirements of this
Section 9.2.
9.3 The obligations and indemnities of Lessee under this Section 9 for
events occurring or arising during the Initial Term or any Extended Term shall
continue in full force and effect, notwithstanding the expiration or other
termination of this Lease Agreement.
10. Risk of Loss; Loss of Equipment.
10.1 Lessee hereby assumes and shall bear the entire risk of loss for
theft, damage, seizure, condemnation, destruction or other injury whatsoever to
the Equipment from any and every cause whatsoever. Such risk of loss shall be
deemed to have been assumed by Lessee from and after such risk passes from the
manufacturer or supplier by agreement or pursuant to applicable law.
10.2 In the event of any loss, seizure, condemnation or destruction of the
Equipment or damage to the Equipment which cannot be repaired by Lessee, Lessee
shall immediately notify Lessor in writing. Within thirty (30) days of such
notice, during which time Lessee shall continue to pay Monthly Rent, Lessee
shall, at the option of Lessor, either (i) replace the Equipment with equipment
of the same type and manufacture and in good repair, condition and working
order, transfer title to such equipment to Lessor free and clear of all liens,
claims and encumbrances, whereupon such equipment shall be deemed Equipment for
all purposes of this Lease Agreement, or (ii) pay to Lessor an amount equal to
the present value of both the aggregate of the remaining unpaid Monthly Rents
and the anticipated residual value of the Equipment plus any other costs
actually incurred by Lessor. Lessor and Lessee agree that the residual value of
the Equipment at the expiration of the Initial Term is reasonably anticipated to
be not less than twenty (20) percent of the Acquisition Cost of the Equipment.
The present value shall be determined by discounting the aggregate of the
remaining unpaid Monthly Rents and the anticipated residual value of the
Equipment to the date of payment by Lessee at the rate of five (5) percent per
annum. When and as requested by Lessor, Lessee shall also pay to Lessor amounts
due pursuant to Section 18 below, if any, arising as a result of the loss,
seizure, replacement, condemnation or destruction of the Equipment. Any
insurance or condemnation proceeds received by Lessor shall be credited to the
obligation of Lessee under this Section 10.2 and the remainder of such proceeds,
if any, shall be paid to Lessee by Lessor in full compensation for the loss of
the leasehold interest in the Equipment by Lessee.
10.3 Upon any replacement of or payment for the Equipment as provided in
Section 10.2 above, this Lease Agreement shall terminate only with respect to
the Equipment so replaced or paid for, and Lessor shall transfer to Lessee title
only to such Equipment "AS IS," "WITH ALL FAULTS", and WITH NO WARRANTIES
WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE.
Lessee shall pay any sales or use taxes due on such transfer.
11. Insurance.
11.1 Lessee shall keep the Equipment insured against all risks of loss or
damage from every cause whatsoever occurring during the Initial Term, or any
Extended Term for an amount not less than the higher of the full replacement
value of the Equipment or the aggregate of unpaid Daily Rent and Monthly Rent
for the balance of the Initial Term, or the Extended Term. Lessee shall also
carry public liability insurance, both personal injury and property damage,
covering the Equipment, and Lessee shall be liable for any deductible portions
of all required insurance.
11.2 All insurance required under this Section 11 shall name Lessor as
additional insured and loss payee. Such insurance shall also be with such
insurers and shall be in such forms and amounts as are satisfactory to Lessor.
All applicable policies shall provide that no act, omission or breach of
warranty by Lessee shall give rise to any defense against payment of the
insurance proceeds to Lessor. Lessee shall pay the premiums for such insurance
and, at the request of Lessor, deliver to Lessor duplicates of such policies or
other evidence satisfactory to Lessor of such insurance coverage. In any event,
Lessee shall provide Lessor with endorsements upon the policies issued by the
insurers which evidence the existence of insurance coverage required by this
Section 11 and by which the insurers agree to give Lessor written notice at
least twenty (20) days prior to the effective date of any expiration,
modification, reduction, termination or cancellation of any such policies.
11.3 The proceeds of insurance required under this Section 11 and payable
as a result of loss or damage to the Equipment shall be applied as set forth in
Section 10.2 above. Upon the occurrence of an Event of Default as defined in
Section 16 below, Lessee hereby irrevocably appoints Lessor as its
attorney-in-fact, which power shall be deemed coupled with an interest, to make
claim for, receive payment of, execute and endorse all documents, checks or
drafts received in payment for loss or damage under any insurance policies
required by this Section 11.
11.4 Notwithstanding anything herein, Lessor shall not be under any duty
to examine any evidence of insurance furnished hereunder, or to ascertain the
existence of any policy or coverage, or to advise Lessee of any failure to
comply with the provisions of this Section 11.
12. Surrender To Lessor. Immediately upon the expiration of the Initial
Term or any Extended Term or at any other termination of this Lease Agreement,
Lessee shall surrender the Equipment to Lessor in good repair and working order,
reasonable wear and tear excepted, by assembling and delivering the Equipment,
ready for shipment, to a place or carrier, as Lessor may designate, within the
state in which the Equipment was originally delivered to Lessee or to which the
Equipment was thereafter moved with the written consent of Lessor. All costs of
removal, assembly, packing and delivery of such Equipment to the place
designated by Lessor shall be borne by Lessee.
13. Fair Market Value Purchase Option. Lessor hereby grants to Lessee the
option to purchase all, but not less than all, Equipment set forth on any
Equipment Schedule at the expiration of the applicable Initial Term or Extended
Term. Any such purchase shall be for cash in an amount equal to the then fair
market value of such Equipment, as determined in good faith by Lessor. This
purchase option may be exercised by Lessee, provided that no Event of Default,
as defined in Section 16 below, has occurred and is continuing. Lessee shall
notify Lessor in writing of its intention to exercise its purchase option at
least thirty (30) days prior to the expiration of the Initial Term or any
Extended Term. Upon payment of the fair market value by Lessee to Lessor, Lessor
shall transfer title to the Equipment to Lessee "AS IS", "WITH ALL FAULTS", and
WITH NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR ANY
PARTICULAR PURPOSE.
14. Financial Statements. Lessee shall annually, within ninety (90) days
after the close of the fiscal year for Lessee, furnish to Lessor financial
statements of Lessee, including a balance sheet as of the close of such year and
statements of income and retained earnings for such year, prepared in accordance
with generally accepted accounting principles, consistently applied from year to
year, and certified by independent public accountants for Lessee. If requested
by Lessor, Lessee shall also provide quarterly financial statements of Lessee,
similarly prepared for each of the first three
1
<PAGE>
quarters of each fiscal year, certified (subject to normal year-end audit
adjustments) by the chief financial officer of Lessee and furnished to Lessor
within sixty (60) days following the end of the quarter, and such other
financial information as may be reasonably requested by Lessor.
15. Delayed Payment Charge. Lessee shall pay to Lessor interest upon the
amount of any Daily Rent, Monthly Rent or other sums not paid by Lessee when due
and owing under this Lease Agreement, from the due date thereof until paid, at
the rate of one and one half (1-1/2) percent per month, but if such rate
violates applicable law, then the maximum rate of interest allowed by such law.
16. Default.
16.1 The occurrence of any of the following events shall constitute an
event of default ("Event of Default") under this Lease Agreement.
(a) Lessee falls to pay any Daily Rent or any Monthly Rent when due
and such failure to pay continues for ten (10) consecutive days; or
(b) Lessee fails to pay any other sum required hereunder, and such
failure continues for a period of ten (10) days following written notice
from Lessor; or
(c) Lessee fails to maintain the insurance as required by Section 11
above and such failure continues for ten (10) days after written notice
from Lessor; or
(d) Lessee violates or fails to perform any other term, covenant or
condition of this Lease Agreement or any other document, agreement or
instrument executed pursuant hereto or in connection herewith, which
failure is not cured within thirty (30) days after written notice from
Lessor; or
(e) Lessee ceases to exist or terminates its independent operations
by reason of any discontinuance, dissolution, liquidation, merger, sale of
substantially all of its assets, or otherwise ceases doing business as a
going concern; or
(f) Lessee (i) applies for or consents to the appointment of, or the
taking of possession by, a receiver, custodian, trustee, liquidator or
similar official for itself or for all or a substantial part of its
property, (ii) is generally not paying its debts as such debts become due,
(iii) makes a general assignment for the benefit of its creditors, (iv)
commences a voluntary case under the United States Bankruptcy Code, as now
or hereafter in effect, seeking liquidation, reorganization or other
relief with respect to itself or its debts, (v) files a petition seeking
to take advantage of any other law providing for the relief of debtors,
(vi) takes any action under the laws of its jurisdiction of incorporation
or organization similar to any of the foregoing, or (vii) takes any
corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case is commenced, without the application or
consent of Lessee, in any court of competent jurisdiction, seeking (i) the
liquidation, reorganization, dissolution, winding up of Lessee or
composition or readjustment of the debts of Lessee, (ii) the appointment
of a trustee, receiver, custodian, liquidator or similar official for
Lessee or for all or any substantial part of its assets, or (iii) similar
relief with respect to Lessee under any law providing for the relief of
debtors; or an order for relief is entered with respect to Lessee in an
involuntary case under the United States Bankruptcy Code, as now or
hereafter in effect, or an action under the laws of the jurisdiction of
incorporation or organization of Lessee, similar to any of the foregoing,
is taken with respect to Lessee without its application or consent; or
(h) Lessee makes any representation or warranty herein or in any
statement or certificate at any time given in writing pursuant to or in
connection with this Lease Agreement, which is false or misleading in any
material respect; or
(i) Lessee defaults under any promissory note, credit agreement,
loan agreement, conditional sales contract, guaranty, lease, indenture,
bond, debenture or other material obligation whatsoever, and a party
thereto or a holder thereof is entitled to accelerate the obligations of
Lessee thereunder; or Lessee defaults in meeting any of its trade, tax or
other current obligations as they mature, unless such obligations are
being contested diligently and in good faith; or
(j) Any party to any guaranty, letter of credit, subordination or
credit agreement or other undertaking, given for the benefit of Lessor and
obtained in connection with this Lease Agreement, breaches, fails to
continue, contests, or purports to terminate or to disclaim such guaranty,
letter of credit, subordination or credit agreement or other undertaking;
or such guaranty, letter of credit, subordination agreement or other
undertaking becomes unenforceable; or a guarantor of this Lease Agreement
shall die, cease to exist or terminate its independent operations.
16.2 No waiver by Lessor of any Event of Default shall constitute a waiver
of any other Event of Default or of the same Event of Default at any other time.
17. Remedies.
17.1 Upon the occurrence of an Event of Default and while such Event of
Default is continuing, Lessor, at its sole option, upon its declaration, and to
the extent not inconsistent with applicable law, may exercise any one or more of
the following remedies:
(a) Lessor may terminate this Lease Agreement whereupon all rights
of Lessee to the quiet enjoyment and use of the Equipment shall cease;
(b) Whether or not this Lease Agreement is terminated, Lessor may
cause Lessee, at the sole cost and expense of Lessee, to return any or all
of the Equipment promptly to the possession of Lessor in good repair and
working order, reasonable wear and tear excepted. Lessor, at its sole
option and through its employees, agents or contractors, may peaceably
enter upon the premises where the Equipment is located and take immediate
possession of and remove the Equipment, all without liability to Lessor,
its employees, agents or contractors for such entry. LESSEE HEREBY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO NOTICE
AND/OR HEARING PRIOR TO THE REPOSSESSION OR REPLEVIN OF THE EQUIPMENT BY
LESSOR, ITS EMPLOYEES, AGENTS OR CONTRACTORS;
(c) Lessor may proceed by court action to enforce performance by
Lessee of this Lease Agreement or pursue any other remedy Lessor may have
hereunder, at law, in equity or under any applicable statute, and recover
such other actual damages as may be incurred by Lessor;
(d) Lessor may recover from Lessee damages, not as a penalty but as
liquidation for all purposes and without limitation of any other amounts
due from Lessee under this Lease Agreement, in an amount equal to the sum
of (i) any unpaid Daily Rents and/or Monthly Rents due and payable for
periods prior to the repossession of the Equipment by Lessor plus any
interest due thereon pursuant to Section 15 above, (ii) the present value
of all future Monthly Rents required to be paid over the remaining Initial
Term or any Extended Term after repossession of the
<PAGE>
Equipment by Lessor, determined by discounting such future Monthly Rents
to the date of payment by Lessee at a rate of five (5) percent per annum,
and (iii) all costs and expenses incurred in searching for, taking,
removing, storing, repairing, restoring, refurbishing and leasing or
selling such Equipment; or
(e) Lessor may sell, lease or otherwise dispose of any or all of the
Equipment, whether or not in the possession of Lessor, at public or
private sale and with or without notice to Lessee, which notice is hereby
expressly waived by Lessee, to the extent permitted by and not
inconsistent with applicable law. Lessor shall then apply against the
obligations of Lessee hereunder the net proceeds of such sale, lease or
other disposition, after deducting therefrom (i) the present value of the
residual value of the Equipment at the expiration of the Initial Term,
which is anticipated by Lessor and Lessee to be not less than twenty (20)
percent of the Acquisition Cost, such present value to be determined by
discounting the residual value to the date of sale, lease or other
disposition at a rate of five (5) percent per annum, and (ii) all costs
incurred by Lessor in connection with such sale, lease or other
disposition including, but not limited to, costs of transportation,
repossession, storage, refurbishing, advertising or other fees. Lessee
shall remain liable for any deficiency, and any excess of such proceeds
over the total obligations owed by Lessee shall be retained by Lessor. If
any notice of such sale, lease or other disposition of the Equipment is
required by applicable law, ten (10) days written notice to Lessee shall
be deemed reasonable.
17.2 No failure on the part of Lessor to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof. No
single or partial exercise of any right or remedy hereunder shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
Each right and remedy provided hereunder is cumulative and not exclusive of any
other right or remedy including, without limitation, any right or remedy
available to Lessor at law, by statute or in equity.
17.3 Lessee shall pay all costs and expenses including, but not limited
to, reasonable legal fees incurred by Lessor arising out of or in connection
with any Event of Default or this Lease Agreement. Lessee shall also be liable
for any amounts due and payable to Lessor under any other provision of this
Lease Agreement including, but not limited to, amounts due and payable under
Section 18 below.
18. Tax Indemnification.
18.1 Lessee represents and warrants that the Equipment is and will remain,
during the entire Initial Term and any Extended Term, property used in a trade
or business or for the production of income within the meaning of Section 167 of
the Internal Revenue Code of 1986, as amended ("Code"). Lessee further
acknowledges and agrees that, pursuant to the Code, Lessor or its affiliated
group, as defined in Section 1504 of the Code ("Affiliated Group"), shall be
entitled to deductions for the recovery of the Acquisition Cost of the Equipment
over the recovery period as set forth in the applicable Equipment Schedule,
using the Accelerated Cost Recovery System as provided by Section 168(b)(1) of
the Code ("ACRS Deductions").
18.2 If as a result of any reason or circumstance whatsoever, except as
specifically set forth in Section 18.3 below, Lessor or its Affiliated Group
shall not be entitled to, shall not be allowed, shall suffer recapture of or
shall lose any ACRS Deductions, then Lessee shall pay to Lessor, upon demand, a
sum to be computed by Lessor in the following manner. Such sum, after deduction
of all federal, state and local income taxes payable by Lessor as a result of
the receipt of such sum, shall be sufficient to restore Lessor or its Affiliated
Group to substantially the same position, on an after-tax basis, as it would
have been in but for the loss of such ACRS Deductions. In making its
computation, Lessor or its Affiliated Group shall consider, but shall not be
limited to, the following factors: (i) the amounts and timing of any net loss of
tax benefits resulting from any such lack of entitlement to or loss, recapture,
or disallowance of ACRS Deductions but offset by any tax benefits derived from
any depreciation or other capital recovery deductions or exclusions from income
allowed to Lessor or its Affiliated Group with respect to the same Equipment;
(ii) penalties, interest or other charges imposed; (iii) differences in tax
years involved; and (iv) the time value of money at a reasonable rate
determined, in good faith, by Lessor. For purposes of computation only, the
amount of indemnification payments hereunder shall be calculated on the
assumption that Lessor and its Affiliated Group have or will have, in all tax
years involved, sufficient taxable income and the tax liability to realize all
tax benefits and incur all losses of tax benefits at the highest marginal
Federal corporate income tax rate in each year. Upon request, Lessor shall
provide Lessee with the methods of computation used in determining any sum that
may be due and payable by Lessee under this Section 18.
18.3 Lessee shall not be obligated to pay any sums required under this
Section 18 in the event that lack of entitlement to, or loss, recapture or
disallowance of any ACRS Deductions results from one or more of the following
events: (i) a disqualifying disposition due to the sale of the Equipment by
Lessor when no Event of Default, as defined in Section 16 above, has occurred,
(ii) a failure of Lessor or its Affiliated Group to timely claim any ACRS
Deductions for the Equipment in its tax return, and/or (iii) the fact that
Lessor or its Affiliated Group does not have, in any taxable year or years,
sufficient taxable income or tax liability to realize the benefit of any ACRS
Deductions that are otherwise allowable to Lessor or its Affiliated Group.
18.4 The representations, obligations and indemnities of Lessee under this
Section 18 shall continue in full force and effect, notwithstanding the
expiration or other termination of this Lease Agreement.
19. Assignment; Sublease.
19.1 Lessor may sell, assign or otherwise transfer all or any part of its
right, title and interest in and to the Equipment and/or this Lease Agreement to
a third-party assignee, subject to the terms and conditions of this Lease
Agreement including, but not limited to, the right to the quiet enjoyment of the
Equipment by Lessee as set forth in Section 7.1 above. Such assignee shall
assume all of the rights and obligations of Lessor under this Lease Agreement
and shall relieve Lessor therefrom. Thereafter, all references to Lessor herein
shall mean such assignee. Notwithstanding any such sale, assignment or transfer,
the obligations hereunder shall remain absolute and unconditional as set forth
in Section 7.2 above.
19.2 Lessor may also pledge, mortgage or grant a security interest in the
Equipment and assign this Lease Agreement as collateral. Each such pledgee,
mortgagee, lienholder or assignee shall have any and all rights as may be
assigned by Lessor but none of the obligations of Lessor hereunder. Any pledge,
mortgage or grant of security interest in the Equipment or assignment of this
Lease Agreement shall be subject to the terms and conditions hereof including,
but not limited to, the right to the quiet enjoyment of the Equipment by Lessee
as set forth in Section 7.1 above. Lessor, by reason of such pledge, mortgage,
grant of security interest or collateral assignment, shall not be relieved of
any of its obligations hereunder which shall remain absolute and unconditional
as set forth in Section 7.2 above. Upon the written request of Lessor, Lessee
shall acknowledge such obligations to the pledgee, mortgagee, lienholder or
assignee.
19.3 LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR PLEDGE
ANY OF ITS INTEREST IN THIS LEASE AGREEMENT OR ANY OF THE EQUIPMENT, WITHOUT THE
PRIOR WRITTEN CONSENT OF LESSOR. Any such sale, transfer, assignment, sublease,
<PAGE>
conveyance or pledge, whether by operation of law or otherwise, without the
prior written consent of Lessor, shall be void.
20. Optional Performance By Lessor. If an Event of Default, as defined in
Section 16 above, occurs and is continuing, Lessor in its sole discretion may
pay or perform such obligation in whole or in part, without thereby becoming
obligated to pay or to perform the same on any other occasion or to pay any
other obligation of Lessee. Any payment or performance by Lessor shall not be
deemed to cure any Event of Default hereunder. Upon such payment or performance
by Lessor, Lessee shall pay forthwith to Lessor the amount of such payment or an
amount equal to all costs and expenses of such performance, as well as any
delayed payment charges on such amounts as set forth in Section 15 above.
21. Compliance and Approvals. Lessee warrants and agrees that this Lease
Agreement and the performance by Lessee of all of its obligations hereunder have
been duly authorized, do not and will not conflict with any provision of the
charter or bylaws of Lessee or of any agreement, indenture, lease or other
instrument to which Lessee is a party or by which Lessee or any of its property
is or may be bound. Lessee warrants and agrees that this Lease Agreement does
not and will not require any governmental authorization, approval, license or
consent except those which have been duly obtained and will remain in effect
during the entire Initial Term and any Extended Term.
22. Miscellaneous.
22.1 The section headings are inserted herein for convenience of reference
and are not part of and shall not affect the meaning or interpretation of this
Lease Agreement.
22.2 Any provision of this Lease Agreement which is unenforceable in whole
or in part in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such unenforceability without invalidating any remaining
part or other provision hereof and shall not be affected in any manner by reason
of such enforceability in any other jurisdiction. The validity and
interpretation of this Lease Agreement and the rights and obligations of the
parties hereto shall be governed in all respects by the laws of The Commonwealth
of Massachusetts without giving effect to the conflicts of laws provisions
thereof.
22.3 This Lease Agreement, including all Equipment Schedules and
Certificates of Acceptance, constitutes the entire agreement between Lessor and
Lessee. Lessor and Lessee agree that this Lease Agreement shall not be amended,
altered or changed except by a written agreement signed by the parties hereto.
LESSEE ACKNOWLEDGES THAT THERE HAVE BEEN NO REPRESENTATIONS, EXPRESS OR IMPLIED,
BY LESSOR OTHER THAN AS SET FORTH HEREIN AND LESSEE EXPRESSLY CONFIRMS THAT IT
HAS NOT RELIED UPON ANY REPRESENTATIONS BY LESSOR, EXCEPT THOSE SET FORTH
HEREIN, AS A BASIS FOR ENTERING INTO THIS LEASE AGREEMENT.
22.4 Any notice required to be given by Lessee or Lessor hereunder shall
be deemed adequately given if sent by registered or certified mail, return
receipt requested, to the other party at their respective addresses stated
herein or at such other place as either party may designate in writing to the
other.
22.5 Lessee agrees to execute and deliver such additional documents and to
perform such further acts as may be reasonably requested by Lessor in order to
carry out and effectuate the purposes of this Lease Agreement. Upon the written
request of Lessor, Lessee further agrees to execute any instrument necessary for
filing or recording this Lease Agreement or to confirm the ownership of the
Equipment by Lessor. Lessor is hereby authorized to insert in any Equipment
Schedule the serial numbers of the Equipment and other identifying marks or
similar information and to sign, on behalf of Lessee, any Uniform Commercial
Code financing statements.
22.6 This Lease Agreement cannot be cancelled or terminated except as
expressly provided herein.
22.7 Whenever the context of this Lease Agreement requires, the singular
includes the plural and the plural includes the singular. Whenever the word
Lessor is used herein, it includes all assignees and successors in interest of
Lessor. If more than one Lessee are named in this Lease Agreement, the liability
of each shall be joint and several.
22.8 All agreements, indemnities, representations and warranties of Lessee
made herein and all rights and remedies of Lessor shall survive the expiration
or other termination of this Lease Agreement, whether or not expressly provided
herein.
22.9 Any waiver of any power, right, remedy or privilege of Lessor
hereunder shall not be effective unless in writing signed by Lessor.
22.10 This Lease Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee, each by its duly authorized officer
or agent, have duly executed and delivered this Lease Agreement, which is
intended to take effect as a sealed instrument, as of the day and year first
written above.
TEXFI Industries, Inc.
---------------------------------------
By /s/ Dane L. Vincent
------------------------------------
Title VP, CFO & Treasurer
---------------------------------
Accepted at Boston, Massachusetts
BANCBOSTON LEASING INC.
By /s/ Paula E. DeLawter
-------------------------------------
Title ASSISTANT VICE PRESIDENT
----------------------------------
FORM 1 (REV 9-87)
<PAGE>
<PAGE>
PURCHASE AGREEMENT
AGREEMENT made as of December 15, 1997 by and between:
TEXFI INDUSTRIES, INC., a Delaware corporation, having an office at
5400 Glenwood Avenue, Suite 215, Raleigh, North Carolina 27612 ("Texfi"); and,
CLARENDON HOLDINGS, LLC, a Delaware limited liability company,
having an office c/o Mentmore Holdings Corporation, 1430 Broadway, 13th Floor,
New York, New York 10018 (the "Transferees);
W I T N E S S E T H:
WHEREAS:
A. Texfi, NHL Enterprises, L.P. ("NHLE") and HockeyMan, Inc. are
parties to that certain Limited Liability Company Agreement dated as of February
26, 1997 (the "LLC Agreement") providing for the creation and operations of
Rival Sport LLC, a Delaware limited liability company ("Rival");
B. All capitalized terms used herein that are defined in the LLC
Agreement shall have the meanings given to them therein; and,
C. Texfi desires to sell and transfer to the Transferee and the
Transferee desires to purchase and accept from Texfi the transfer of all of
Texfi's Interest as a Member in Rival on and subject to the terms and conditions
of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto hereby agree as follows:
1. Purchase and Sale of Interest.
Subject to the terms and conditions of this Agreement and
Section 10.1 of the LLC Agreement, simultaneously with the execution and
delivery hereof, Texfi shall sell, assign and transfer all of its right, title
and interest in to and under its Interest in Rival to the Transferee, and the
Transferee shall purchase, assume and accept the transfer to it of such Interest
all by the execution and delivery by Texfi to the Transferee, simultaneously
with the execution and delivery of this Agreement, of a Bill of Sale in the form
of Exhibit A annexed hereto (the "Bill of Sale").
2. Consideration.
As full consideration for the sale, assignment and transfer by
Texfi of its Interest in Rival to the Transferee, the Transferee shall execute
and deliver to Texfi, simultaneously with
<PAGE>
the execution and delivery of this Agreement, its promissory note, dated the
date of this Agreement, in the principal amount of $3.8 million, and otherwise
in the form of Exhibit B annexed hereto (the "Note"). The obligations of the
Transferee under the Note shall be secured by the grant by the Transferee to
Texfi of a first lien on and security interest in all of the Transferee's rights
to receive distributions in cash from Rival under and pursuant to the terms of
the LLC Agreement (but not in the Interest transferred pursuant hereto itself)
by the execution and delivery by the Transferee of a security agreement, dated
the date hereof, in form and substance satisfactory to Texfi and the Transferee
providing for such grant (the "Security Agreement").
3. Representations and Warranties.
(a) Each of Texfi and the Purchaser hereby represent and
warrant to the other as follows:
(i) It is duly organized under the laws of the State of
Delaware, and is validly existing and in good standing under such laws.
(ii) It has taken all necessary action to authorize it
to execute, deliver and perform this Agreement and, in the case of Texfi, the
Bill of Sale, and, in the case of the Transferee, the Note and the Security
Agreement, and each such document executed by it has been duly executed and
delivered and constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium and other similar laws affecting the rights
of creditors generally and by equitable principles; provided, however, that, in
the case of Texfi, the foregoing representation and warranty is subject to the
delivery to its Board of Directors of the approval of its Special Committee of
Directors established to review this Agreement and the transactions contemplated
hereby (the "Special Committee Approval").
(iii) The execution, delivery and performance of this
Agreement and, in the case of Texfi, the Bill of Sale, and in the case of the
Transferee, the Note and the Security Agreement, does not and will not require
any governmental approval or violate any law or regulation applicable to it, or
conflict with, result in a breach of or constitute a default under the
certificate of incorporation or by-laws of Texfi or the limited liability
agreement of the Transferee, or under any material provisions of any agreement
to which either is a party or by which its assets or properties are effected,
except that the execution, delivery and performance of this Agreement requires
the consent of NHLE under the terms and provisions of the LLC Agreement (the
"NHLE Consent") in form and substance satisfactory to Texfi, and the delivery of
the Special Committee Approval.
- 2 -
<PAGE>
(b) The Transferee hereby represents arid warrants to Texfi
that it is under common control with Mentmore Holdings Corporation ("Mentmore")
in that entities controlled by William Remley and Richard Kramer, or of which
Messrs. Remley and Kramer, or members of their families, are the beneficiaries,
control, directly or indirectly, both of Transferee and Mentmore.
4. Conditions.
The consummation by Texfi of the transactions contemplated by
this Agreement, and the effectiveness of this Agreement and the Bill of Sale,
are subject to the condition that Texfi shall have received the NHLE Consent and
the Special Committee Approval. Texfi shall promptly notify the Transferee in
writing upon its receipt of each of such items.
5. Miscellaneous.
This Agreement may not be amended or waived except in writing,
and signed by the party against which such amendment or waiver is sought to be
enforced. This Agreement shall inure to the benefit of the parties hereto and
their respective successors and assigns. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
TEXFI INDUSTRIES, INC.
By /s/ Dane L. Vincent
----------------------
CLARENDON HOLDINGS, LLC
By /s/ William L. Remley
----------------------
- 3 -
<PAGE>
EXHIBIT A
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Texfi Industries, Inc., a
Delaware corporation (the "Seller") for valuable consideration, the receipt of
which is hereby acknowledged, does hereby grant, sell, transfer and deliver unto
Clarendon Holdings, LLC, a Delaware limited liability company (the "Buyer") all
of the Seller's right, title and interest in, to and under its "Interest" as a
"Member" in Rival Sport LLC, a Delaware limited liability company ("Rival"), as
such terms are used and defined in the Limited Liability Company Agreement dated
as of February 26, 1997 among the Seller and certain other parties, providing
for the creation and operations of Rival.
TO HAVE AND TO HOLD all and singular the said property to said Buyer
and its successors and assigns, to their own use and behalf forever.
IN WITNESS WHEREOF, the said Seller has executed these presents as
of the 15th day of December, 1997.
TEXFI INDUSTRIES, INC.
By
----------------------
<PAGE>
EXHIBIT B
NOTE
$4,524,285.18 as of December 15, 1997
FOR VALUE RECEIVED, the undersigned, Clarendon Holdings LLC, a
Delaware limited liability company (the "Buyer"), hereby promises to pay to the
order of Texfi Industries, Inc., a Delaware corporation (the "Seller"), the
principal sum of Four Million Five Hundred Twenty-Four Thousand Two Hundred
Eighty-Five and 18/100 Dollars ($4,524,285.18) on the date and in such amounts
as are set forth in the next succeeding paragraph, and to pay interest on such
principal amount from the date of execution and delivery of this Note up to the
date of payment or payments, or prepayment, of all or a portion of such
principal amount, in each case on the amount so paid or prepaid, at the rate per
annum of five (5%) per cent, compounded annually, and calculated on the basis of
a 365/366 day year (the "5% Rate") with all such interest being payable together
with payments of principal hereunder.
The principal amount of this Note shall be due and payable in
full on the earlier of: (i) December 15, 2007; or (ii) the day on which
distributions in cash, if any, are first made by Rival Sport LLC, a Delaware
limited liability company ("Rival") under and pursuant to Section 13.4 of that
certain Limited Liability Company agreement dated as of February 26, 1997 (the
"LLC Agreement") (capitalized terms used herein that are defined in the LLC
Agreement shall have the meanings given to them therein) by and among the Seller
and certain other parties, following the dissolution of Rival. The Buyer shall
be obligated to prepay the principal amount of this Note from time to time if
and when the Buyer shall receive a distribution or distributions in cash from
Rival (other than in respect of its Income Tax Distribution Amount) under
Article VIII of the LLC Agreement, concurrently with the Buyer's receipt
thereof. The amount of each such prepayment shall be equal to the product of:
(x) the amount of such distribution received by the Buyer; multiplied by a
fraction, the numerator of which shall be $4,524,285.18, plus interest thereon
at the 5% Rate from the respective date or dates of the Seller's contributions
to the capital of Rival through the date of such distribution (the "Numerator
Amount"), and the denominator of which shall be the sum of the Numerator Amount
plus the aggregate principal amount of all contributions in cash or in kind made
by the Buyer to the capital of Rival from and after the date of execution and
delivery of this Note through the date of such distribution, plus interest
thereon at the 5% Rate from the respective date or dates of such contributions
through the date of such distribution. The amount of each such prepayment shall
be applied, first, to interest accrued on the unpaid principal amount of this
Note up to the date of
<PAGE>
prepayment, and, second, to the principal amount hereof.
This Note is secured by the Security Agreement, as defined in
the Purchase Agreement of even date herewith between the Seller and the Buyer,
and the holder hereof is entitled to the benefit thereof.
In the event that:
(a) The Buyer shall default in payment or prepayment of
principal or interest on this Note when and as due, and such default shall
continue for five (5) days after the Buyer shall have received notice thereof
from the Seller; or
(b) The Buyer shall fail to perform or observe any of its
obligations under the aforesaid Pledge Agreement and such failure shall continue
for thirty (30) days after the Buyer shall have received notice thereof from the
Seller; or,
(c) The Buyer shall have commenced a voluntary case under the
federal bankruptcy laws; or a case or other proceeding shall be commenced
against the Buyer seeking relief under the federal bankruptcy laws or seeking
the appointment of a trustee or receiver for the Buyer or any substantial
portion of its assets, and such case or proceeding shall continue undismissed or
unstayed for 60 consecutive calendar days;
then, in the case of an event under (c), the principal of and all interest due
under this Note shall thereupon become due and payable without presentment,
demand, protest or other notice, all of which are expressly waived, and, in the
case of an event under (a) or (b), the principal of and interest under this Note
shall become due and payable upon notice to such effect given by the Seller to
the Buyer.
The Buyer shall be liable for the payment of all costs of
collection of this Note, including reasonable legal fees and expenses.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK.
CLARENDON HOLDINGS LLC
By______________________________
<PAGE>
<PAGE>
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Texfi Industries, Inc., a
Delaware corporation (the "Seller") for valuable consideration, the receipt of
which is hereby acknowledged, does hereby grant, sell, transfer and deliver unto
Clarendon Holdings, LLC, a Delaware limited liability company (the "Buyer") all
of the Seller's right, title and interest in, to and under its "Interest" as a
"Member" in Rival Sport LLC, a Delaware limited liability company ("Rival"), as
such terms are used and defined in the Limited Liability Company Agreement dated
as of February 26, 1997 among the Seller and certain other parties, providing
for the creation and operations of Rival.
TO HAVE AND TO HOLD all and singular the said property to said Buyer
and its successors and assigns, to their own use and behalf forever.
IN WITNESS WHEREOF, the said Seller has executed these presents as
of the 15th day of December, 1997.
TEXFI INDUSTRIES, INC.
By /s/ Dane L. Vincent
----------------------
<PAGE>
<PAGE>
NOTE
$4,524,285.18 as of December 15, 1997
FOR VALUE RECEIVED, the undersigned, Clarendon Holdings LLC, a Delaware
limited liability company (the "Buyer"), hereby promises to pay to the order of
Texfi Industries, Inc., a Delaware corporation (the "Seller"), the principal sum
of Four Million Five Hundred Twenty-Four Thousand Two Hundred Eighty-Five and
18/100 Dollars ($4,524,285.18) on the date and in such amounts as are set forth
in the next succeeding paragraph, and to pay interest on such principal amount
from the date of execution and delivery of this Note up to the date of payment
or payments, or prepayment, of all or a portion of such principal amount, in
each case on the amount so paid or prepaid, at the rate per annum of five (5%)
per cent, compounded annually, and calculated on the basis of a 365/366 day year
(the "5% Rate") with all such interest being payable together with payments of
principal hereunder.
The principal amount of this Note shall be due and payable in full on
the earlier of: (i) December 15, 2007; or (ii) the day on which distributions in
cash, if any, are first made by Rival Sport LLC, a Delaware limited liability
company ("Rival") under and pursuant to Section 13.4 of that certain Limited
Liability Company agreement dated as of February 26, 1997 (the "LLC Agreement")
(capitalized terms used herein that are defined in the LLC Agreement shall have
the meanings given to them therein) by and among the Seller and certain other
parties, following the dissolution of Rival. The Buyer shall be obligated to
prepay the principal amount of this Note from time to time if and when the Buyer
shall receive a distribution or distributions in cash from Rival (other than in
respect of its Income Tax Distribution Amount) under Article VIII of the LLC
Agreement, concurrently with the Buyer's receipt thereof. The amount of each
such prepayment shall be equal to the product of: (x) the amount of such
distribution received by the Buyer; multiplied by a fraction, the numerator of
which shall be $4,524,285.18, plus interest thereon at the 5% Rate from the
respective date or dates of the Seller's contributions to the capital of Rival
through the date of such distribution (the "Numerator Amount"), and the
denominator of which shall be the sum of the Numerator Amount plus the aggregate
principal amount of all contributions in cash or in kind made by the Buyer to
the capital of Rival from and after the date of execution and delivery of this
Note through the date of such distribution, plus interest thereon at the 5% Rate
from the respective date or dates of such contributions through the date of such
distribution. The amount of each such prepayment shall be applied, first, to
interest accrued on the unpaid principal amount of this Note up to the date of
prepayment, and, second, to the principal amount hereof.
<PAGE>
This Note is secured by the Security Agreement, as defined in the
Purchase Agreement of even date herewith between the Seller and the Buyer, and
the holder hereof is entitled to the benefit thereof.
In the event that:
(a) The Buyer shall default in payment or prepayment of principal or
interest on this Note when and as due, and such default shall continue for five
(5) days after the Buyer shall have received notice thereof from the Seller; or
(b) The Buyer shall fail to perform or observe any of its obligations
under the aforesaid Pledge Agreement and such failure shall continue for thirty
(30) days after the Buyer shall have received notice thereof from the Seller;
or,
(c) The Buyer shall have commenced a voluntary case under the federal
bankruptcy laws; or a case or other proceeding shall be commenced against the
Buyer seeking relief under the federal bankruptcy laws or seeking the
appointment of a trustee or receiver for the Buyer or any substantial portion of
its assets, and such case or proceeding shall continue undismissed or unstayed
for 60 consecutive calendar days;
then, in the case of an event under (c), the principal of and all interest due
under this Note shall thereupon become due and payable without presentment,
demand, protest or other notice, all of which are expressly waived, and, in the
case of an event under (a) or (b), the principal of and interest under this Note
shall become due and payable upon notice to such effect given by the Seller to
the Buyer.
The Buyer shall be liable for the payment of all costs of collection of
this Note, including reasonable legal fees and expenses.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF
NEW YORK.
CLARENDON HOLDINGS LLC
By /s/ William L. Remley
---------------------
William L. Remley
<PAGE>
<PAGE>
SECURITY AGREEMENT
AGREEMENT, made as of the 15th day of December, 1997, by and
between: CLARENDON HOLDINGS, LLC, a Delaware limited liability company, having
an office c/o Mentmore Holdings Corp., 1430 Broadway, 13th Floor, New York, New
York 10018 (the "Company"); and
TEXFI INDUSTRIES, INC., a Delaware corporation, having an office at
5400 Glenwood Avenue, Suite 215, Raleigh, North Carolina 27612 ("Texfi").
W I T N E S S E T H:
WHEREAS:
A. The Company has executed and delivered to Texfi its promissory
note dated of even date herewith in the principal amount of $3.8 million
(hereinafter, as it may from time to time be amended, modified or supplemented,
referred to as the "Note") in consideration for the sale and transfer by Texfi
to the Company on the date hereof of all of its Interest as a Member in Rival
Sport LLC, a Delaware limited liability company ("Rival"), created and operating
under and pursuant to that certain Limited Liability Company Agreement dated as
of February 26, 1997 (as such agreement may hereafter be amended, modified or
supplemented, the "LLC Agreement") by and among Texfi, NHL Enterprises, L.P. and
HockeyMan, Inc. (all capitalized terms used herein that are defined in the LLC
Agreement shall have the meanings given so them therein), pursuant to the
Purchase Agreement of even date herewith between the Company and Texfi (the
"Purchase Agreement");
B. The Purchase Agreement and the Note require that the Company's
obligations under the Note be secured by the grant by the Company to Texfi of a
first lien on and security interest in all of the Company's right to receive
distributions in cash from Rival in its capacity as a Member of Rival under and
pursuant to the LLC Agreement (but not in the Interest itself that is being sold
and transferred on the date hereof by Texfi to the Company) (such right of the
Company is hereinafter referred to as its "Right to Receive Rival
Distributions");
NOW, THEREFORE, in consideration of the foregoing and in order to
induce Texfi to sell its Interest in Rival to the Company on the date hereof
pursuant to the Purchase Agreement, the Company hereby agrees with Texfi as
follows:
1. As collateral security for the due payment and performance of all
indebtedness and other liabilities and obligations of the Company to Texfi
arising out of or in any way connected with the Note, whether now existing or
hereafter arising (referred to collectively as the "Obligations"), the Company
hereby pledges, assigns, sets over and transfers to Texfi, and grants to Texfi a
first security interest in, all of the Company's right, title and
<PAGE>
interest in and to its Right to Receive Rival Distributions and in all of the
proceeds thereof (hereinafter referred to, collectively, as the "Collateral").
2. The Company represents and warrants to Texfi that the Company is,
after giving effect to its acquisition of Texfi's Interest in Rival on the date
hereof pursuant to the Purchase Agreement, the owner of the Right to Receive
Rival Distributions, and has good and marketable title thereto, free of any and
all liens, security interests, encumbrances or claims, and upon filing of
appropriate Uniform Commercial Code financing statements with the City Register
of New York County and the Department of State of the State of New York, this
Agreement creates and grants a valid first lien on and perfected security
interest in the Right to Receive Rival Distributions and the proceeds thereof,
subject to no prior security interest, lien, charge or encumbrance or to any
agreement purporting to grant to any third party a security interest in the
property or assets of the Company that would include the Collateral. The Company
will not sell, convey, or otherwise dispose of any interest in any of the
Collateral, nor create or assume or permit to exist any assignment, lien,
security interest, encumbrance or claim on or against any of the Collateral
except as created by this Amendment, and the Company will promptly notify Texfi
of any such other claim, lien, security interest or other encumbrance made or
asserted against any of the Collateral and will defend the Collateral against
any such claim, lien, security interest or other encumbrance.
3. In the event of the occurrence of any Event of Default as defined
or specified in the Note:
(a) Texfi, thereafter, with or without notice to the Company and
without demand of performance or other demand, may forthwith exercise all rights
of the holder of the Collateral available under law, and may sell, assign,
contract to sell or otherwise dispose of and deliver the Collateral as it may
deem best, for cash or on credit, or for future delivery, and generally, to
exercise any and all rights afforded to a secured party under the Uniform
Commercial Code or other applicable law and the Company shall be obligated to
pay to Texfi any and all interest penalty required by law or otherwise for
redemption of the Collateral before due.
(b) The payments received by Texfi under the Collateral or the
proceeds of any collection, recovery, receipt, appropriation, realization or
disposition of the Collateral shall be applied as follows:
First, to the costs, fees and expenses of every kind
incurred in connection therewith or incidental to the collection of payments,
including, without limitation, any interest penalty required by law or otherwise
for redemption of the Collateral before due, or the care, safekeeping,
reinvestment, or otherwise of the Collateral or the preparing for the sale,
selling and the like, or in any way relating to the rights of Texfi hereunder,
including reasonable attorneys' fees and legal expenses incurred by Texfi:
Second, to satisfaction of the Obligations;
- 2 -
<PAGE>
Third, to the payment of any other amounts required by
applicable law; and
Fourth, to the Company to the extent of any surplus proceeds.
If the payments received by Texfi under the Collateral or upon the sale or other
disposition of the Collateral, or the proceeds thereof are insufficient to pay
all amounts to which Texfi is legally entitled, the Company, under the Note,
will be liable for the deficiency, together with interested thereon, at the rate
prescribed in the Note, and the reasonable fees of any attorneys employed by
Texfi to collect such deficiency. To the extent permitted by applicable law, the
Company waives all claims, damages and demands against Texfi arising out of the
receipt of payments under the Collateral or the sale of any or all of the
Collateral.
4. The Company hereby authorizes Texfi and does hereby make,
constitute and appoint Texfi, and any officer or agent of Texfi with full power
of substitution, as the Company's true and lawful attorney in fact, with power,
in its own name or in the name of the Company, to endorse any notes, checks,
drafts, money orders, or other instruments or payment in respect to the
Collateral that may come into possession of Texfi; to pay or discharge taxes,
liens, security interests or other encumbrances at any time levied or placed on
or threatened against any of the Collateral; to demand, collect, receipt for,
compromise, settle and sue for monies due in respect of any or all of the
Collateral; and, generally, to do, at Texfi's option and at the Company's
expense, at any time or from time to time, all acts and things that Texfi deems
necessary to protect, preserve, and realize upon the Collateral and Texfi's
security interest therein in order to effect the intent of this Agreement and
the Note, all as fully and effectually as the Company might or could do; and the
Company hereby ratifies all that said attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney shall be irrevocable for the term
of this Agreement and thereafter as long as any of the Obligations shall be
outstanding.
5. (a) No course of dealing between the Company and Texfi, nor any
failure to exercise, nor any delay in exercising, on the part of Texfi, any
right, power or privilege hereunder or under the Loan Agreement shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(b) The rights and remedies herein provided and provided in
the Note, are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law, including, without limitation, the rights
and remedies of a secured party under the Uniform Commercial Code.
6. (a) This Agreement is subject to modification only by a writing
signed by the parties hereto.
(b) The benefits and burdens of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto.
- 3 -
<PAGE>
(c) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. The term of this Agreement shall commence on the date hereof and shall
continue in full force and effect, and be binding upon the Company, until all of
the Obligations have been duly paid and performed and such payment and
performance has been acknowledged in writing by Texfi, whereupon this Agreement
shall terminate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
CLARENDON HOLDINGS, LLC
By /s/ William L. Remley
---------------------
TEXFI INDUSTRIES, INC.
By /s/ Dane L. Vincent
--------------------
- 4 -
<PAGE>
<PAGE>
Exhibit 11
Texfi Industries, Inc.
<TABLE>
<CAPTION>
Computation of Earnings Per Share
Fiscal Year
-------------------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
NUMBER OF SHARES OF COMMON STOCK OUTSTANDING:
Balance at beginning of period ............... 8,735,491 8,650,690 8,652,621
Stock options exercised ...................... 17,872 84,801 3,068
Stock canceled under restricted
stock plan .................................. -- -- (5,000)
Stock issued to Directors .................... 105,735 -- --
--------- --------- ---------
Balance at end of period ............. 8,859,098 8,735,491 8,650,690
========= ========= =========
PRIMARY:
Net income (loss) (see Note 1) ................. $ 149,000 $(17,579,000) $(16,914,000)
========= ========= =========
Weighted average number of shares outstanding:
Stock outstanding for the period
based on a daily weighted average .......... 8,806,685 8,696,177 8,651,668
Stock equivalents - outstanding
stock options computed on the treasury
stock method using average market
price ...................................... 102,687 -- --
--------- --------- ---------
Weighted average number of shares
outstanding ................................ 8,909,372 8,696,177 8,651,668
========= ========= =========
Per share amounts:
Net income (loss) ........................... $ .02 $ (2.02) $ (1.96)
========= ========= =========
FULLY DILUTED:
Net income (loss) (see Note 1) ............... $ 149,000 $(17,579,000) $(16,914,000)
Add interest on convertible debentures,
net of income tax effect .................... 367,000 417,000 425,000
--------- --------- ---------
Net income (loss) ............................ $ 516,000 $(17,162,000) $(16,489,000)
========= ========= =========
Weighted avg. number of shares outstanding:
Stock outstanding for the period
based on a daily weighted average ........... 8,806,685 8,696,177 8,651,668
stock equivalents - outstanding
stock options computed on the treasury
stock method by using end-of-period
market prices in lieu of average market
prices ...................................... 110,161 -- --
Increase in common shares assuming
conversion of the 11-1/4% Convertible
Senior Subordinated Debentures .............. 484,961 528,647 528,647
--------- --------- ---------
Weighted average number of shares
outstanding ................................... 9,401,807 9,224,824 9,180,315
========= ========= =========
Per share amounts:
Excluding Convertible Debenture Shares:
Net income (loss) ........................... $ .02 $ (2.02) $ (1.96)
========= ========= =========
Including Convertible Debenture Shares:
Net income (loss) ........................... $ .05 $ (1.86) $ (1.80)
========= ========= =========
</TABLE>
NOTE 1: Refer to Notes to the Consolidated Financial Statements appearing in
Registrant's 1997 Annual Report to Stockholders included as item 8 of this
document.
<PAGE>
<PAGE>
EXHIBIT 21
SUBSIDIARY OF TEXFI INDUSTRIES, INC.
Casualwear Express, Inc.
<PAGE>
<PAGE>
EXHIBIT 22
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Registration Statements No.
2-79384 on Form S-8 dated September 15, 1982, No. 33-14697 on Form S-8 dated May
26, 1987, No. 33-22584 on Form S-8 dated June 16, 1988, No. 33-22592 on Form S-8
dated June 16, 1988, No. 33-25313 on Form S-8 dated October 31, 1988, No.
33-31969 on Form S-8 dated November 6, 1989, No. 33-34836 on Form S-8 dated May
11, 1990, No. 33-34293 on Form S-8 dated April 11, 1990, No. 33-38527 on Form
S-8 dated December 31, 1990, No. 33-40298 on Form S-8 dated April 29, 1991, No.
33-47601 on Form S-8 dated April 30, 1992, No. 33-60565 on Form S-8 dated June
26, 1995, and No. 33-31099 on Form S-8 dated July 11, 1997 of our report dated
December 30, 1997 with respect to the consolidated financial statements and
schedule of Texfi Industries, Inc. and subsidiary included in the Annual Report
(Form 10-K) for the year ended October 31, 1997.
Ernst & Young
Raleigh, North Carolina
February 6, 1998
<PAGE>
<TABLE> <S> <C>
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<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> OCT-31-1997
<PERIOD-END> OCT-31-1997
<CASH> 1,434
<SECURITIES> 0
<RECEIVABLES> 41,440
<ALLOWANCES> 645
<INVENTORY> 19,914
<CURRENT-ASSETS> 63,498
<PP&E> 78,424
<DEPRECIATION> 50,170
<TOTAL-ASSETS> 100,067
<CURRENT-LIABILITIES> 37,362
<BONDS> 35,631
0
0
<COMMON> 8,859
<OTHER-SE> (21,379)
<TOTAL-LIABILITY-AND-EQUITY> 100,067
<SALES> 207,400
<TOTAL-REVENUES> 207,400
<CGS> 179,449
<TOTAL-COSTS> 194,499
<OTHER-EXPENSES> 1,465
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,297
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<CHANGES> 0
<NET-INCOME> 149
<EPS-PRIMARY> 0.02
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