As filed with the Securities and Exchange Commission on February 6, 1998.
Registration No. 333-37617
------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DELTA MILLS, INC. & DELTA MILLS MARKETING, INC.
(Exact names of registrants, as specified in their charters)
<TABLE>
<CAPTION>
Delaware 2211 13-2677657
<S> <C> <C>
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
233 NORTH MAIN STREET, SUITE NO. 200
GREENVILLE, SOUTH CAROLINA 29601
(864) 232-8301
(Address, Including ZIP Code, and Telephone Number, Including Area Code,
of Registrants' Principal Executive Offices)
BETTIS C. RAINSFORD, EXECUTIVE VICE PRESIDENT, TREASURER, AND CHIEF FINANCIAL OFFICER
DELTA MILLS, INC. & DELTA MILLS MARKETING, INC.
108-1/2 COURTHOUSE SQUARE
P. O. BOX 388
EDGEFIELD, SOUTH CAROLINA 29824
(803) 637-5304
(Name, Address, Including ZIP Code, and Telephone Number,
Including Area Code, of Agent for Service)
</TABLE>
Copies to:
ERIC B. AMSTUTZ, ESQ.
JO WATSON HACKL, ESQ.
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
POST OFFICE BOX 728
GREENVILLE, SOUTH CAROLINA 29602-0728
(864) 242-8200 (TELEPHONE)
(864) 235-8900 (FACSIMILE)
Approximate date of commencement of proposed sale to the public: January 7,
1998.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| ____________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ____________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum
Title of each class of offering price per Proposed maximum Amount of
securities to be registered Amount to be registered note(1) aggregate offering price registration fee
<S> <C> <C> <C> <C>
- -------------------------- ------------------- ---------------------- ----------------------- ---------------------
9-5/8% Senior Notes due $150,000,000 100% $150,000,000 $45,454.55 (2)
2007, Series B
Guarantees of 9-5/8%
Senior Notes due 2007,
Series B (3) (3) (3) (3)
- -------------------------- -------------------- --------------------- ----------------------- ---------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Previously paid.
(3) Pursuant to Rule 457(n), no registration fee is required with respect to
the Guarantees of the Senior Notes registered hereby.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
EXPLANATORY NOTE
The purpose of this Post-Effective Amendment No. 1 to the Registration
Statement on Form S-4 (Commission File No. 333-37617) is to fulfill the
requirements of Delta Mills, Inc.'s and Delta Mills Marketing, Inc.'s
undertaking filed as Exhibit 99.7 to Amendment No. 3 to the Registration
Statement by filing as Exhibit 5.2 the opinion of Debevoise & Plimpton and as
Exhibit 23.3 the consent of Debevoise & Plimpton which is included in Exhibit
5.2. This Post-Effective Amendment No. 1 also contains a revised opinion of
Wyche, Burgess, Freeman & Parham, P.A. as Exhibit 5.1 and the consent of Wyche,
Burgess, Freeman & Parham, P.A. listed as Exhibit 23.1 and included in
Exhibit 5.1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Sixth of the Company's Restated Certificate of Incorporation
provides that the Company shall, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law ("DGCL"), indemnify all persons whom it
may indemnify pursuant thereto. A copy of Section 145 of the DGCL is attached as
Exhibit 99.6.
Article VII, Section 7 of the Guarantor's by-laws require the Guarantor
to indemnify its officers, directors, employees and agents to the fullest extent
permitted by the DGCL.
The Registration Rights Agreement provides that each holder of Senior
Notes agrees severally and not jointly to indemnify and hold harmless the
Company and the Guarantor, and their respective directors, officers, employees
and agents (including, without limitation, attorneys) and any person controlling
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) the Company and the Guarantor, and the respective officers,
directors, partners, employees, representatives and agents (including, without
limitation, attorneys) of each such person, with respect to claims and actions
based on information relating to each such holder furnished in writing by or on
behalf of such holder expressly for use in any registration statement. The
extent of holders' obligation to indemnify the Company and the Guarantor is set
out in full in Section 8 of the Registration Rights Agreement filed as Exhibit
1.2 to this Registration Statement, to which reference is hereby made.
The Registration Rights Agreement provides that the Company and the
Guarantor jointly and severally agree to indemnify and hold harmless each holder
of Senior Notes, each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any holder, and the
respective officers, directors, partners, employees, representatives and agents
(including without limitation, attorneys) of any holder or any controlling
person, to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, actions and reasonable expenses
directly or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or prospectus, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading unless such untrue
statement or omission or alleged untrue statement or omission is made in
reliance upon and in conformity with information relating to any of the holders
furnished in writing to the Company by any of the holders expressly for use
therein. The extent of the obligation of the Company and the Guarantor to
indemnify holders is set out in full in Section 8 of the Registration Rights
Agreement filed as Exhibit 1.2 to this Registration Statement, to which
reference is hereby made.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
*1.1 Purchase Agreement Relating to $150,000,000 9-5/8% Senior Notes due
2007, dated August 20, 1997, by and among Delta Mills, Inc., Delta
Mills Marketing, Inc. and NationsBanc Capital Markets, Inc.
*1.2 Registration Rights Agreement, dated as of August 25, 1997, by and
among Delta Mills, Inc., Delta Mills Marketing, Inc. and NationsBanc
Capital Markets, Inc.
*3.1 Restated and Amended Certificate of Incorporation of Delta Mills,
Inc.
*3.2 Bylaws of Delta Mills, Inc.
****3.3 Certificate of Incorporation of Delta Mills Marketing, Inc.
****3.4 Bylaws of Delta Mills Marketing, Inc.
*4.1 Indenture, dated as of August 25, 1997, by and among Delta Mills,
Inc., Delta Mills Marketing, Inc. and NationsBanc Capital Markets,
Inc.
4.2 Credit Agreement dated as of August 25, 1997 among Delta Mills, Inc.
as Borrower, certain subsidiaries of the Borrower from time to time
party thereto, as guarantors, the several Lenders from time to time
party thereto, NationsBank, N.A., as Administrative Agent, and BNY
Financial Corporation, as Collateral Agent: Incorporated by reference
to Form 8-K/A of Delta Woodside Industries, Inc., filed September 25,
1997.
****5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. re Legality.
5.2 Opinion of Debevoise & Plimpton re Legality
***8.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. re Tax Matters.
10.1 See Exhibits 1.1, 1.2, 4.1 and 4.2.
**10.2 Delta Woodside Industries, Inc. Long Term Incentive Plan (approved by
shareholders on November 6, 1997).
*12.1 Statement re Computation of Ratios.
*21.1 Listing of subsidiaries.
23.1 Consent of Wyche, Burgess, Freeman & Parham, P.A.: Contained in
Exhibits 5.1 and 8.1.
*****23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Debevoise & Plimpton: Contained in Exhibit 5.2.
<PAGE>
*24.1 Power of Attorney (Delta Mills, Inc.): Included on Signature Page.
***24.2 Power of Attorney (Delta Mills Marketing, Inc.): Included on
Signature Page.
*25.1 Statement of Eligibility of Trustee (bound separately from other
exhibits).
*27.1 Financial Data Schedule (electronic filing only).
II-1
<PAGE>
****99.1 Form of Letter of Transmittal.
****99.2 Form of Notice of Guaranteed Delivery.
****99.3 Form of Letter to Clients.
****99.4 Form of Letter to Registered Holders and DTC Participants.
****99.5 Instructions to Registered Holders and DTC Participants.
*99.6 Section 145 of the Delaware General Corporation Law.
****99.7 Undertaking by Delta Mills, Inc. and Delta Mills Marketing,
Inc.
* Filed with initial filing of Registration Statement on October 9,
1997.
** Filed with Amendment No. 1 to the Registration Statement on
December 5, 1997.
*** Filed with Amendment No. 2 to the Registration Statement on
December 23, 1997.
**** Filed with Amendment No. 3 to the Registration Statement on January
7, 1998.
***** Filed with initial filings and previous amendments to the
Registration Statement, but not required for this filing.
(b) Certain Additional Financial Statement Schedules: Not applicable.
(c) Report, Opinion or Appraisal: Not applicable.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrants hereby undertake to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(c) The undersigned registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(d) (1) The undersigned registrants hereby undertake as follows: that
prior to any public reoffering of the securities registered hereunder through
use of a prospectus which is part of this registration statement, by any person
or party who is deemed to be an underwriter within the meaning of Rule 145(c),
the issuers undertake that such reoffering prospectus will
<PAGE>
contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(2) The registrants undertake that every prospectus: (i) that is
filed pursuant to paragraph (1) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Act and is used in connection
with an offering of securities subject to Rule 415, will be filed as part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933,
II-2
<PAGE>
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will, unless in
the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Post-Effective Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Edgefield, State of South Carolina, on February 4,
1998.
DELTA MILLS, INC.
By: /s/ Bettis C. Rainsford
--------------------------
Bettis C. Rainsford
Executive Vice President,
Treasurer, and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
SIGNATURE TITLE DATE
<S> <C>
/s/ E. Erwin Maddrey, II * President, Chief Executive February 4, 1998
- ------------------------------------ Officer and Director
E. Erwin Maddrey, II
/s/ Bettis C. Rainsford Executive Vice President, February 4, 1998
- ------------------------------------ Treasurer, Chief Financial Officer
Bettis C. Rainsford and Director
/s/ Douglas J. Stevens * Controller and Assistant Secretary February 4, 1998
- -------------------------
Douglas J. Stevens
/s/ C.C. Guy * Director February 4, 1998
- ------------------------------------
C. C. Guy
/s/ Buck A. Mickel * Director February 4, 1998
- ------------------------------------
Buck A. Mickel
* By Bettis C. Rainsford, attorney in fact.
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Edgefield, State of South Carolina, on February
4, 1998.
DELTA MILLS MARKETING, INC.
By: /s/ Bettis C. Rainsford
-------------------------
Bettis C. Rainsford
Executive Vice President, Treasurer, and
Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ E. Erwin Maddrey, II* President, Chief Executive February 4, 1998
- ------------------------ Officer and Director
E. Erwin Maddrey, II
/s/ Bettis C. Rainsford Executive Vice President February 4, 1998
- ------------------------ Treasurer, Chief Financial Officer
Bettis C. Rainsford and Director
/s/ Douglas J. Stevens* Controller and Assistant Secretary February 4, 1998
- ------------------------
Douglas J. Stevens
/s/ C.C. Guy* Director February 4, 1998
- ------------------------
C.C. Guy
/s/ Buck A. Mickel* Director February 4, 1998
- ------------------------
Buck A. Mickel
</TABLE>
* By Bettis C. Rainsford, attorney in fact.
<PAGE>
EXHIBIT INDEX
*1.1 Purchase Agreement Relating to $150,000,000 9-5/8% Senior Notes due
2007, dated August 20, 1997, by and among Delta Mills, Inc., Delta
Mills Marketing, Inc. and NationsBanc Capital Markets, Inc.
*1.2 Registration Rights Agreement, dated as of August 25, 1997, by and
among Delta Mills, Inc., Delta Mills Marketing, Inc. and NationsBanc
Capital Markets, Inc.
*3.1 Restated and Amended Certificate of Incorporation of Delta Mills, Inc.
*3.2 Bylaws of Delta Mills, Inc.
****3.3 Certificate of Incorporation of Delta Mills Marketing, Inc.
****3.4 Bylaws of Delta Mills Marketing, Inc.
*4.1 Indenture, dated as of August 25, 1997, by and among Delta Mills,
Inc., Delta Mills Marketing, Inc. and NationsBanc Capital Markets,
Inc.
4.2 Credit Agreement dated as of August 25, 1997, among Delta Mills, Inc.
as Borrower, certain subsidiaries of the Borrower from time to time
party thereto, as guarantors, the several Lenders from time to time
party thereto, NationsBank, N.A., as Administrative Agent, and BNY
Financial Corporation, as Collateral Agent: Incorporated by reference
to Form 8-K/A of Delta Woodside Industries, Inc., filed September 25,
1997.
****5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. re Legality.
5.2 Opinion of Debevoise & Plimpton re Legality.
***8.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. re Tax Matters.
10.1 See Exhibits 1.1, 1.2, 4.1 and 4.2.
**10.2 Delta Woodside Industries, Inc. Long Term Incentive Plan (approved by
shareholders on November 6, 1997).
*12.1 Statement re Computation of Ratios.
*21.1 Listing of subsidiaries.
23.1 Consent of Wyche, Burgess, Freeman & Parham, P.A.: Contained in
Exhibits 5.1 and 8.1.
*****23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Debevoise & Plimpton: Contained in Exhibit 5.2.
*24.1 Power of Attorney (Delta Mills, Inc.): Included in Signature Page.
***24.2 Power of Attorney (Delta Mills Marketing, Inc.): Included in Signature
Page.
*25.1 Statement of Eligibility of Trustee (bound separately from other
exhibits).
*27.1 Financial Data Schedule (electronic filing only).
****99.1 Form of Letter of Transmittal.
****99.2 Form of Notice of Guaranteed Delivery.
****99.3 Form of Letter to Clients.
****99.4 Form of Letter to Registered Holders and DTC Participants.
****99.5 Instructions to Registered Holders and DTC Participants.
*99.6 Section 145 of the Delaware General Corporation Law.
****99.7 Undertaking by Delta Mills, Inc. and Delta Mills Marketing, Inc.
* Filed with initial filing of Registration Statement on October 9, 1997.
** Filed with Amendment No. 1 to the Registration Statement on December
5, 1997.
*** Filed with Amendment No. 2 to the Registration Statement on December
23, 1997.
**** Filed with Amendment No. 3 to the Registration Statement on January
7, 1998.
***** Filed with initial filing and previous amendments to the Registration
Statement but not required for this filing.
II-6
EXHIBIT 5.1
[Letterhead of Wyche, Burgess, Freeman & Parham, P.A.]
February 4, 1998
Delta Mills, Inc.
Delta Mills Marketing, Inc.
233 North Main Street
Greenville, South Carolina 29601
RE: Registration Statement on Form S-4 (No. 333-37617)
Ladies and Gentlemen:
We have served as counsel to Delta Mills, Inc, a Delaware corporation
(the "Company"), and Delta Mills Marketing, Inc., a Delaware corporation (the
"Guarantor"), in connection with the filing of the above referenced Registration
Statement (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") to register under the Securities Act of 1933, as
amended (the "Act"), $150,000,000 in aggregate principal amount of 9 5/8% Senior
Notes due 2007, Series B, guaranteed by the Guarantor (such Notes, together with
the guarantee thereof, the "Exchange Notes"), to be issued under an Indenture
dated as of August 25, 1997 (the "Indenture") between the Company, the Guarantor
and the Bank of New York, as Trustee (the "Trustee"). The Company has offered to
exchange the Exchange Notes for the Company's 9 5/8% Senior Notes due 2007,
Series A, guaranteed by the Guarantor (such notes, together with the guarantee
thereof, the "Senior Notes").
In this connection, we have examined the Indenture, the form of the
Exchange Notes and the Registration Statement. We have also examined originals
or copies of such corporate documents and records of the Company and the
Guarantor, certificates of public officials, certificates of the Company, the
Guarantor or any officer thereof and such other documents as we have deemed
relevant and necessary as the basis for this opinion and statement.
With respect to matters of fact, we have relied upon certificates of
public officials and certificates of the Company, the Guarantor or any officer
thereof and have assumed, without independent investigation, the accuracy of the
factual statements made and the information contained in such certificates. With
respect to matters governed by the laws of the State of New York, we have
engaged, on your behalf and with your permission, the law firm of Debevoise &
Plimpton to provide us with an opinion on such matters on which we rely in
providing this opinion to you.
We have assumed, without investigation, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to authentic original documents of all documents submitted to us as
copies, and the accuracy and completeness of all documents made available to us
by the Company or the Guarantor. We have assumed, without investigation, the
legal capacity of all persons. With respect to agreements, instruments and other
documents executed by entities or individuals other than or in addition to the
Company or the Guarantor, we have assumed, without investigation, the power and
authority of any such other entity or individual to enter into and perform all
of its or his obligations under such agreements, instruments and other
documents, the due execution and delivery by each such entity or individual of
such agreements, instruments and other documents and that such agreements,
instruments and other documents are the valid, binding and enforceable
obligations of each such other entity or individual.
Based upon and subject to the foregoing, and subject to the comments,
limitations and qualifications set forth below, it is our opinion that:
(i) the Company and the Guarantor are, and since the closing
of the Senior Notes have been, duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) the Company and the Guarantor have, and at the time of
execution and delivery of the Indenture had, the corporate power and
authority to enter into and perform the Indenture, and the Indenture
has been duly authorized, executed and delivered by each of them;
II-7
<PAGE>
(iii) the Company and the Guarantor have the corporate power
and authority to execute and deliver the Exchange Notes and to perform
their obligations thereunder; and
(iv) the execution and delivery of the Exchange Notes have
been duly authorized by all requisite corporate action of each of the
Company and the Guarantor, and, when executed and delivered by the
Company and the Guarantor and duly authenticated by the Trustee, the
Exchange Notes will be legally issued and valid and binding obligations
of the Company and the Guarantor, except that enforcement thereof may
be subject to (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a proceeding may be
brought.
No opinion is given as to the enforceability of:
(A) any provision of the Indenture or the Exchange Notes
(collectively, the "Documents") requiring or in effect requiring that
any waiver or amendment of any provision of any of the Documents or any
other agreement, instrument or other document may be effected only in
writing or in a particular form;
(B) any appointment of any person or entity as agent or
attorney-in-fact;
(C) any requirement to pay any amount, after a default or
event of default or other failure to perform an act or satisfy a
condition, in the nature of a higher rate of interest or post-default
interest or other amount that a court determines is a "penalty";
(D) any provision releasing, exculpating or exempting any
person or entity from, or requiring indemnification or legal defense of
any person or entity for, liability for action or inaction, to the
extent the action or inaction involves negligence, willful misconduct
or unlawful conduct or does not satisfy a standard required by law;
(E) Section 11.11 of the Indenture;
(F) any provision of any guaranty providing that the guaranty
is enforceable, notwithstanding the unenforceability of the obligations
guaranteed, to the extent that the obligations guaranteed are held to
be void or invalid under applicable law or barred by the applicable
statute of limitations;
(G) any choice-of-law provision;
(H) any provision that creates a presumption or an evidentiary
standard or other standard by which an agreement, instrument or other
document or an action or inaction is to be construed or a fact is to be
established or that prohibits the use of an agreement to interpret
another agreement;
(I) any provision of the Documents as it may be affected by
section "SEVENTH" (respecting compromises or arrangements with
creditors or stockholders) of the Company's certificate of
incorporation; or
(J) the second sentence of section 7.07 of the Indenture.
Any waiver of any right or defense is legal, valid, binding and
enforceable only to the extent such waiver is not contrary to law.
Any inspection right provided by any of the Documents may be limited by
confidentiality or privilege rules established by law.
Whenever in this letter the phrase "to our knowledge", the phrase "come
to our attention" or any similar phrase is used, we are referring to the current
awareness of information of the attorneys of this law firm, after such inquiry
of such attorneys as we believe to be reasonable in the circumstances, who are
included in either of the following descriptions: (i) lawyers primarily involved
in the preparation of an opinion or statement set forth herein, and (ii) lawyers
whose relationship with the Company and the Guarantor, or with the subject
matter of any such opinion or statement, is of such significance that the lawyer
principally responsible for the Registration Statement reasonably believes those
lawyers should be consulted with respect to such opinion or statement.
II-8
<PAGE>
Provisions of any of the Documents that permit any party to take or
omit to take action or to make any determination, or to benefit from any
indemnity or compensation for costs (including without limitation taxes) or
similar undertaking, may be subject to a requirement that such action be taken,
such omission be made or such determination be made, and that any action or
inaction by the party that may give rise to a request for payment under such an
undertaking be taken or not taken, on a reasonable basis and in good faith and
that the amount of such requested payment be reasonable.
We do not herein intend to express any opinion, statement or belief as
to any matter governed by (or that purports to be governed by) any law other
than, and our opinions, statements and beliefs are limited solely to, the
existing laws of the State of South Carolina, the existing Federal laws of the
United States of America, the existing laws of the State of New York and the
General Corporation Law of the State of Delaware. With respect to matters of New
York law, we have relied exclusively on the opinion of Debevoise & Plimpton, a
copy of which is filed as Exhibit 5.2 to the Registration Statement. We express
no opinion with regard to any matter that is or may be (or that purports to be)
governed by the law of any other state or jurisdiction or the law of the State
of Delaware other than the Delaware General Corporation Law. We further express
no opinion as to any matter governed by or arising under any law requiring or in
effect requiring accurate and/or complete disclosure or prohibiting or in effect
prohibiting inaccurate and/or incomplete disclosure, the Act, the Securities
Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as amended,
the South Carolina Uniform Securities Act, any other state's securities laws, or
any rule or regulation promulgated under any of the foregoing laws. The law
covered by the opinions expressed herein does not include any statute,
ordinance, decision, rule or regulation of any political subdivision (other than
a judicial court) of any State.
This letter is rendered as of the date hereof and applies only to
matters specifically covered by this letter, and we disclaim any continuing
responsibility for matters occurring after the date of this letter or any
obligation to update this letter. This opinion is limited to the matters
expressly set forth herein, and no opinion is implied or may be inferred beyond
the matters expressly stated herein.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus constituting a part thereof. In giving such consent,
we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Subject to the immediately preceding paragraph, this opinion letter is
being provided to you in connection with the Registration Statement and is not
to be used, circulated, quoted or otherwise relied upon by any other person or
entity other than holders of the Exchange Notes, or for any other purpose,
without our express written consent. No opinion may be implied or inferred
beyond the opinion expressly stated.
Very truly yours,
/s/ WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
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[Letterhead of Debevoise & Plimpton]
February 4, 1998
Delta Mills, Inc.
233 North Main Street, Suite No. 200
Greenville, South Carolina 29601
Re: Registration Statement on Form S-4 of Delta Mills, Inc.
and Delta Mills Marketing, Inc. (Registration No. 333-37617)
Ladies and Gentlemen:
We have acted as special New York counsel to Delta Mills, Inc., a
Delaware corporation (the "Company"), and Delta Mills Marketing, Inc., a
Delaware corporation (the "Guarantor"), in connection with the preparation of
this opinion letter and the filing thereof with the Securities and Exchange
Commission (the "Commission") as an exhibit to a post-effective amendment to the
Registration Statement on Form S-4 referred to above (as so amended, the
"Registration Statement"). We understand that the Registration Statement relates
to the proposed exchange by the Company of $150,000,000 aggregate principal
amount of the Company's unsecured 9 5/8% Series B Senior Notes due 2007 (the
"New Notes"), which will be guaranteed on an unsecured basis by the Guarantor
(such guarantee, the "New Guarantee"), for $150,000,000 aggregate principal
amount of the Company's unsecured 9 5/8% Series A Senior Notes due 2007 (the
"Existing Notes") which are guaranteed on an unsecured basis by the Guarantor
(such guarantee, the "Existing Guarantee"). We further understand that the
Existing Notes were issued and the Existing Guarantee was given pursuant to the
Indenture, dated as of August 25, 1997, among the Company, the Guarantor and The
Bank of New York as trustee (the "Trustee"), and that the New Notes will be
issued and the New Guarantee will be given pursuant to such Indenture, as
amended by Amendment No. 1 thereto dated as of December 30, 1997 (as so amended,
the "Indenture").
In so acting, we have examined and relied upon photocopies, provided to
us on your behalf by your counsel Wyche, Burgess, Freeman & Parham, P.A. and
identified by them to us as being complete and correct copies, of (i) the
Indenture, (ii) the form of the New Notes, in the form to be executed by the
Company and authenticated by the Trustee, marked to show changes from the form
of New Note attached to the Indenture as Exhibit A, (iii) the form of the New
Guarantee, in the form to be executed by the Guarantor and endorsed upon the New
Notes, marked to show changes from the form of New Guarantee attached to the
Indenture as Exhibit C, (iv) the Purchase Agreement, dated August 20, 1997 (the
"Purchase Agreement"), among the Company, the Guarantor, and NationsBanc Capital
Markets, Inc. as Initial Purchaser (the "Initial Purchaser") and (v) the
Registration Rights Agreement, dated as of August 25, 1997, among the Company,
the Guarantor and the Initial Purchaser. We have also examined and relied upon
the originals, or copies certified or otherwise identified to our satisfaction,
of such other documents as in our judgment are necessary or appropriate to
enable us to render the opinion expressed below.
In all such examinations, we have assumed without investigation the
legal capacity of all natural persons executing documents, the genuineness of
all signatures on original or certified copies, the authenticity of all original
or certified copies and the conformity to original or certified documents of all
copies submitted to us as conformed or reproduction copies. We have relied as to
factual matters upon, and have assumed without investigation the accuracy of,
the representations and warranties contained in the
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Purchase Agreement and other statements of or information from public officials
and officers and representatives of the Company, the Guarantor and others.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions hereinafter expressed, we are of the opinion
that:
1. When executed by the Company and authenticated by the Trustee in
accordance with the terms of the Indenture and delivered against exchange
therefor of the Existing Notes pursuant to the exchange offer described in the
Registration Statement, the New Notes will be validly issued and will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
2. When executed by the Guarantor and endorsed upon the New Notes in
accordance with the terms of the Indenture, and upon the execution,
authentication and issuance of the New Notes in accordance with the terms of
the Indenture and delivery of the New Notes (with the New Guarantee so endorsed
thereon) against exchange therefor of the Existing Notes (including the Existing
Guarantee endorsed thereon) pursuant to the exchange offer described in the
Registration Statement, the New Guarantee will constitute a valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms.
The foregoing opinion is limited by and subject to the effects of (i)
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights or remedies generally and (ii) general
principals of equity (whether such principles are considered in a proceeding at
law or equity), including the discretion of the court before which any
proceeding may be brought, concepts of good faith, reasonableness and fair
dealing, and standards of materiality. General principles of equity may limit
the enforceability of (without limitation) any provision that any waiver or
amendment may only be effected in writing, any exculpation of a party from
liability to the extent arising from its unlawful conduct, any provision that a
guarantee is enforceable regardless of any circumstance that might constitute a
legal or equitable discharge or defense of the guarantor (including invalidity
or unenforceability of any guaranteed obligation), or any severability
provision. The enforceability of any provision that an agreement may not be
used to interpret another agreement may be limited by and subject to the
authority of a court to apply rules of evidence or procedure.
With your permission, for purposes of the opinion expressed herein, we
have assumed without investigation that (i) the Company, the Guarantor and the
Trustee are and at all prior times have been duly organized, validly existing
and in good standing under the laws of their respective jurisdictions of
organization, (ii) the parties to the Indenture had and have the corporate power
and authority to enter into and perform the Indenture, the Indenture has been
duly authorized, executed and delivered by each of them, and the Indenture is
valid, binding and enforceable with respect to the Trustee, (iii) the Company
has the corporate power and authority to execute, deliver and perform the New
Notes, and the Guarantor has the corporate power and authority to execute,
deliver and perform the New Guarantee, and (iv) the New Notes have been duly
authorized by the Company, and the New Guarantee has been duly authorized by the
Guarantor.
We express no opinion as to the effect of any laws regarding fraudulent
transfers or conveyances. We express no opinion as to the laws of any
jurisdiction other than the internal laws of the State of New York.
Except to the limited extent described in the first sentence of this
opinion letter, we have not participated in the preparation or filing with the
Commission of the Registration Statement or in any of the transactions described
therein or relating thereto, including but not limited to the execution and
delivery of the Indenture and the Existing Notes and Existing Guarantee and the
initial offering, issuance and sale of the Existing Notes and Existing
Guarantee, and we do not assume any obligation with respect thereto. The opinion
expressed herein is rendered as of the date of this opinion letter, and we
assume no obligation to supplement this opinion letter if any applicable laws
change after the date hereof or if we become aware of any facts that might
change any opinion expressed herein after the date hereof.
We have provided a copy of this opinion to your counsel Wyche, Burgess,
Freeman & Parham, P.A. Such counsel may rely on this opinion in giving their
opinion to be filed as an exhibit to the Registration Statement.
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<PAGE>
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement. In giving such consent, we do not hereby concede that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Commission hereunder.
Very truly yours,
/s/ DEBEVOISE & PLIMPTON
DEBEVOISE & PLIMPTON
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