UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM 10-Q
(Mark One)
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended October 2, 1999
--------------------------------------------------
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from_________________________to_______________________
Commission file number 1-6853
SHAW INDUSTRIES, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
GEORGIA 58-1032521
- --------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
616 E. WALNUT AVENUE, DALTON, GEORGIA 30720
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(706) 278-3812
- ------------------------------
Registrant's telephone number,
including area code
NOT APPLICABLE
- --------------------------------------------------------------------------------
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check |X| 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 ______.
APPLICABLE ONLY TO CORPORATE ISSUERS: Indicate the number of shares outstanding
of each of the issuer's classes of common stock, as of the latest practicable
date: November 8, 1999 - 133,785,097 shares
<PAGE>
SHAW INDUSTRIES, INC.
FORM 10-Q
INDEX
PART I - FINANCIAL INFORMATION PAGE NUMBERS
--------------------- ------------
Item 1. Financial Statements
Condensed Consolidated Balance Sheets - October 2, 1999
and January 2, 1999 3-4
Condensed Consolidated Statements of Income and Retained
Earnings - For the Three Months Ended
October 2, 1999 and October 3, 1998 5
Condensed Consolidated Statements of Income and Retained
Earnings - For the Nine Months Ended
October 2, 1999 and October 3, 1998 6
Condensed Consolidated Statements of Cash Flow -
For the Nine Months Ended October 2, 1999
and October 3, 1998 7
Notes to Condensed Consolidated Financial Statements 8-10
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations 11-14
Item 3. Quantitative and Qualitative Disclosures about Market Risk 14
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 14
Item 2. Changes in Securities and Use of Proceeds 15
Item 3. Defaults Upon Senior Securities 15
Item 4. Submission of Matters to a Vote of Security Holders 15
Item 5. Other Information 15
Item 6. Exhibits and Reports on Form 8-K 15-16
SIGNATURES 16
2
<PAGE>
PART 1 - ITEM ONE - FINANCIAL INFORMATION
SHAW INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
ASSETS October 2, January 2,
1999 1999
----------- -----------
(UNAUDITED)
CURRENT ASSETS:
Cash and cash equivalents ................ $ 25,912 $ 12,555
----------- -----------
Accounts receivable, less
allowance for doubtful accounts and
discounts of $24,003 and $21,512 ...... 273,324 276,002
----------- -----------
Inventories -
Raw materials ......................... 255,450 293,868
Work-in-process ....................... 102,405 75,060
Finished goods ........................ 341,758 290,152
----------- -----------
699,613 659,080
----------- -----------
Other current assets ..................... 145,959 134,733
----------- -----------
TOTAL CURRENT ASSETS ........... 1,144,808 1,082,370
----------- -----------
PROPERTY, PLANT AND EQUIPMENT,
at cost:
Land and land improvements ............... 31,592 31,425
Buildings and leasehold improvements ..... 331,450 320,991
Machinery and equipment .................. 1,065,989 1,105,505
Construction in progress ................. 119,736 41,827
----------- -----------
1,548,767 1,499,748
Less - Accumulated depreciation and
amortization ...................... (806,652) (783,320)
----------- -----------
742,115 716,428
----------- -----------
GOODWILL, net ............................. 421,910 416,028
OTHER ASSETS .............................. 43,315 46,621
----------- -----------
TOTAL ASSETS ................... $ 2,352,148 $ 2,261,447
=========== ===========
3
<PAGE>
LIABILITIES AND SHAREHOLDERS' INVESTMENT
(IN THOUSANDS, EXCEPT SHARE DATA)
October 2, January 2,
1999 1999
----------- -----------
(UNAUDITED)
CURRENT LIABILITIES:
Current maturities of long-term debt ...... $ 269 $ 8
Accounts payable .......................... 257,066 194,352
Accrued liabilities ....................... 331,525 260,450
----------- -----------
TOTAL CURRENT LIABILITIES ............. 588,860 454,810
----------- -----------
LONG-TERM DEBT, less current maturities ........ 768,939 927,434
----------- -----------
DEFERRED INCOME TAXES .......................... 72,287 65,768
----------- -----------
OTHER LIABILITIES .............................. 18,045 16,067
----------- -----------
SHAREHOLDERS' INVESTMENT:
Common stock, no par, $1.11 stated value,
authorized 500,000,000 shares; issued and
outstanding: 137,705,299 shares at
October 2, 1999 and 140,906,175 shares
at January 2, 1999 .................... 152,854 156,407
Paid-in capital ........................... 131,609 195,452
Cumulative translation adjustment ......... (2,339) (3,156)
Retained earnings ......................... 621,893 448,665
----------- -----------
TOTAL SHAREHOLDERS' INVESTMENT ........ 904,017 797,368
----------- -----------
TOTAL LIABILITIES AND SHAREHOLDERS'
INVESTMENT .......................... $ 2,352,148 $ 2,261,447
=========== ===========
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE>
SHAW INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME AND RETAINED EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
THREE MONTHS THREE MONTHS
ENDED ENDED
October 2, October 3,
1999 1998
----------- -----------
NET SALES ...................................... $ 1,082,923 $ 851,634
COSTS AND EXPENSES:
Cost of sales ............................. 790,273 642,442
Selling, general and administrative ....... 156,807 128,146
Interest expense, net ..................... 15,275 14,740
Other expense, net ........................ 1,012 387
----------- -----------
INCOME BEFORE INCOME TAXES ..................... 119,556 65,919
PROVISION FOR INCOME TAXES ..................... 48,843 26,722
----------- -----------
INCOME BEFORE EQUITY IN INCOME OF
JOINT VENTURE ............................. 70,713 39,197
EQUITY IN INCOME OF JOINT VENTURE .............. 970 420
----------- -----------
NET INCOME ..................................... $ 71,683 $ 39,617
=========== ===========
DIVIDENDS PAID PER COMMON SHARE ................ $ 0.05 $ 0.00
=========== ===========
EARNINGS PER COMMON SHARE:
Basic ..................................... $ 0.52 $ 0.32
=========== ===========
Diluted ................................... $ 0.51 $ 0.32
=========== ===========
RETAINED EARNINGS:
Beginning of period ....................... $ 557,088 $ 382,317
Add - net income .......................... 71,683 39,617
(Deduct)-dividends paid ................... (6,878) --
----------- -----------
End of period ............................. $ 621,893 $ 421,934
=========== ===========
The accompanying notes are an integral part of these condensed consolidated
financial statements.
5
<PAGE>
SHAW INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME AND RETAINED EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
NINE MONTHS NINE MONTHS
ENDED ENDED
October 2, October 3,
1999 1998
----------- -----------
NET SALES ...................................... $ 3,103,852 $ 2,589,768
COSTS AND EXPENSES:
Cost of sales ............................. 2,284,455 1,923,050
Selling, general and administrative ....... 469,435 472,249
Charge to record loss on sale of residential
retail operations, store closing costs
and writedown of certain assets ....... -- 132,303
Pre-opening expenses, retail operations ... -- 232
Interest expense, net ..................... 46,572 45,548
Other expense, net ........................ 2,898 3,853
----------- -----------
INCOME BEFORE INCOME TAXES ..................... 300,492 12,533
PROVISION FOR INCOME TAXES ..................... 123,345 19,314
----------- -----------
INCOME (LOSS) BEFORE EQUITY IN INCOME OF
JOINT VENTURE ............................. 177,147 (6,781)
EQUITY IN INCOME OF JOINT VENTURE .............. 2,959 682
----------- -----------
NET INCOME (LOSS) .............................. $ 180,106 ($ 6,099)
=========== ===========
DIVIDENDS PAID PER COMMON SHARE ................ $ 0.05 $ 0.075
=========== ===========
EARNINGS (LOSS) PER COMMON SHARE:
Basic ..................................... $ 1.29 ($ 0.05)
=========== ===========
Diluted ................................... $ 1.27 ($ 0.05)
=========== ===========
RETAINED EARNINGS:
Beginning of period ....................... $ 448,665 $ 437,867
Add - net income (loss) ................... 180,106 (6,099)
(Deduct) - dividends paid ................. (6,878) (9,834)
----------- -----------
End of period ............................. $ 621,893 $ 421,934
=========== ===========
The accompanying notes are an integral part of these condensed consolidated
financial statements.
6
<PAGE>
<TABLE>
<CAPTION>
SHAW INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF
CASH FLOW
(UNAUDITED AND IN THOUSANDS)
NINE MONTHS NINE MONTHS
ENDED ENDED
October 2, October 3,
1999 1998
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) ..................................... $ 180,106 ($ 6,099)
Adjustments to reconcile net income (loss)
to net cash provided by operating
activities:
Depreciation and amortization .................... 70,075 58,449
Provision for doubtful accounts .................. 5,075 4,574
Deferred income taxes ............................ 6,519 (3,024)
Charge to record loss on sale of
residential retail operations, store
closing costs and writedown of certain assets -- 92,660
Changes in operating assets and
liabilities, net of disposition:
Accounts receivable ......................... (2,397) 111,584
Inventories ................................. (40,533) (82,690)
Other current assets ........................ (11,226) 35,032
Accounts payable ............................ 62,714 33,939
Accrued liabilities ......................... 71,075 50,993
Other, net .................................. (9,460) 8,922
--------- ---------
Total adjustments ................. 151,842 310,439
--------- ---------
Net cash provided by operating activities .......... 331,948 304,340
--------- ---------
INVESTING ACTIVITIES:
Additions to property, plant and equipment ............. (86,702) (54,977)
Retirements of property, plant and
equipment, net ..................................... 727 7,084
Disposal of U.K. assets ................................ -- (16,566)
Sale of residential operations ......................... -- 14,378
--------- ---------
Net cash used in investing activities .............. (85,975) (50,081)
--------- ---------
FINANCING ACTIVITIES:
Decrease in notes payable ............................. -- (10)
Decrease in long-term debt, net ....................... (158,234) (135,352)
Dividends paid ........................................ (6,878) (9,834)
Purchase of common stock .............................. (79,515) (176,370)
Proceeds from exercise of stock options ............... 12,011 27,543
--------- ---------
Net cash used in financing activities .............. (232,616) (294,023)
--------- ---------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS ............................................ 13,357 (39,764)
CASH AND CASH EQUIVALENTS AT BEGINNING
OF PERIOD .............................................. 12,555 43,571
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD .................. $ 25,912 $ 3,807
========= =========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
7
<PAGE>
SHAW INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 2, 1999
(UNAUDITED)
---------------------------------------------------------------
1. Basis of Presentation
The financial statements included herein have been prepared by the
company, without audit, pursuant to the rules and regulations of the Securities
and Exchange Commission. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules and
regulations, although the company believes that the disclosures are adequate to
make the information not misleading. These financial statements should be read
in conjunction with the financial statements and related notes contained in the
company's 1998 Annual Report on Form 10-K. In the opinion of management, the
accompanying unaudited financial statements contain all adjustments necessary to
present fairly the company's financial position, results of operations and cash
flow at the dates and for the periods presented. Interim results of operations
are not necessarily indicative of the results to be expected for a full year.
2. Accounts Receivable
In September 1998, the company entered into agreements pursuant to which
it sold a percentage ownership interest in a defined pool of the company's trade
receivables to a securitization conduit. As collections reduce accounts
receivable included in the pool, the company sells participating interests in
new receivables to the conduit to bring the amount in the pool up to the maximum
permitted by the agreements. The receivables are sold to the conduit at a
discount which reflects, among other things, the conduit's financing cost of
issuing its own commercial paper backed by these accounts receivable and
accounts receivable sold by other participating entities. The agreements expire
August 30, 2000, but may be extended for additional one-year terms. On September
4, 1998, the company received $198,971,000 of proceeds from the initial sale of
such receivables. During the second quarter 1999, the company amended the
agreements to increase the maximum amount of receivables able to be sold. As a
result, the company received an additional $99,488,000 of initial sale proceeds.
All proceeds were used to reduce outstanding borrowings under its domestic
revolving credit facility and were reflected as a reduction of receivables in
the condensed consolidated balance sheet and as an operating activity in the
condensed consolidated statement of cash flow. As of October 2, 1999, the
company had approximately $297,075,000 of accounts receivable sold and
outstanding under this program.
3. Inventories
The company uses the last-in, first-out (LIFO) method of valuing
substantially all of its domestic inventories. If LIFO inventories were valued
at current costs, the inventories would have been $56,235,000 and $23,556,000
lower at October 2, 1999 and January 2, 1999, respectively. Certain of the
company's finished goods inventories, representing approximately 13 percent of
total inventories, are valued at the lower of first-in, first-out (FIFO) cost or
market.
4. Long-Term Debt
The company's domestic revolving credit facility provides for borrowings
of up to $1.0 billion and expires in March 2003. The LIBOR-based rate at October
2, 1999 was approximately 6.30 percent, and borrowings outstanding under this
facility totaled $696,000,000. The variable interest rates on $552,750,000 of
amounts outstanding under the company's revolving credit facilities have been
fixed through various dates through September 2003 by interest rate swap
agreements. To provide further financing capacity, in November 1999, the company
entered into a 364-day $200 million senior unsecured revolving credit facility.
5. Earnings Per Share
Earnings per share for the three and nine-month periods ended October 2,
1999 and October 3, 1998 have been computed based upon the weighted average
shares and dilutive potential common shares outstanding. The net income (loss)
amounts presented in the accompanying condensed consolidated statements of
income represent amounts available or related to shareholders.
8
<PAGE>
The following table reconciles the denominator of the basic and diluted
earnings per share computations:
<TABLE>
<CAPTION>
<S> <C> <C>
Three Months Ended
October 2, 1999 October 3, 1998
- ---------------------------------------------------- ------------------ ------------------
Weighted average common shares 137,722,390 122,082,216
Dilutive incremental shares from assumed
conversions of options under stock option plans 2,119,429 2,511,952
- ---------------------------------------------------- ------------------ ------------------
Weighted average common shares and
dilutive potential common shares 139,841,819 124,594,168
- ---------------------------------------------------- ------------------ ------------------
Nine Months Ended
October 2, 1999 October 3, 1998
- ---------------------------------------------------- ------------------ ------------------
Weighted average common shares 139,820,506 124,006,200
Dilutive incremental shares from assumed
conversions of options under stock option plans 2,355,566 -
- ---------------------------------------------------- ------------------ ------------------
Weighted average common shares and
dilutive potential common shares 142,176,072 124,006,200
- ---------------------------------------------------- ------------------ ------------------
</TABLE>
6. Derivative Financial Instruments
The company uses interest rate swap agreements to fix interest rates on
current and anticipated borrowings to reduce exposure to interest rate
fluctuations. Under existing accounting literature, these interest rate swaps
are accounted for as hedging activities. The net cash paid or received on
interest rate hedges is included in interest expense. The company may also
employ foreign currency exchange contracts when, in the normal course of
business, they are determined to effectively manage and reduce foreign currency
exchange rate fluctuation risk. The company does not enter into financial
derivatives for speculative or trading purposes. In June 1998, the FASB issued
SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities,"
which establishes accounting and reporting standards for derivative instruments
and for hedging activities. SFAS No. 133 is effective, and the company expects
to adopt this new standard, in the company's first quarter of fiscal 2001. The
company's management has not determined the impact this new statement will have
on the financial statements.
7. Comprehensive Income
The company has other comprehensive income in the form of cumulative
translation adjustments which resulted in total comprehensive income of
$71,010,000 for the three months ended October 2, 1999 and $180,923,000 for the
nine months ended October 2, 1999. For 1998, the company had other comprehensive
income in the form of cumulative translation adjustments and an unrealized loss
on available-for-sale equity securities which resulted in total comprehensive
income of $26,800,000 for the quarter ended October 3, 1998 and total
comprehensive loss of ($22,615,000) for the nine months ended October 3, 1998.
8. Sale and Acquisition
On August 9, 1998, the company sold substantially all of its remaining
residential retail operations to The Maxim Group, Inc. ("Maxim") in exchange for
3,150,000 shares of Maxim stock, $25,000,000 cash and a one-year note in the
principal amount of approximately $18,000,000, subject to adjustment. Stores not
sold were closed.
On October 6, 1998, the company completed its merger with Queen Carpet
Corporation ("Queen") for approximately $579,135,000 consisting of approximately
19,440,000 shares of common stock of the company, 3,150,000 shares of Maxim
stock, cash of $35,981,000 and assumed debt of approximately $216,000,000. The
acquisition has been accounted for as a purchase transaction, and accordingly,
the results of operations of Queen have been included in the accompanying
condensed consolidated financial statements since October 7, 1998. The purchase
price has been allocated to assets and liabilities based on their estimated fair
values at the date of acquisition. The excess of the consideration paid over the
estimated fair value at the date of acquisition of $333,886,000, has been
recorded as goodwill and is being amortized on a straight-line basis over 40
years.
9
<PAGE>
The following table summarizes on an unaudited pro forma basis, the
consolidated results of operations as though Queen had been acquired on January
4, 1998 (000s except per share data):
Three months Nine months
ended ended
October 3, 1998 October 3, 1998
(Unaudited) (Unaudited)
- -------------------------------------- ---------- ----------
Net Sales ............................ $1,065,780 $3,194,941
Net Income ........................... 51,995 20,332
Earnings per common share-
Basic and Diluted .............. 0.36 0.14
- -------------------------------------- ---------- ----------
9. Segment Information
The table below presents information about reported segments for the
three and nine months ended October 2, 1999 and October 3, 1998 (000's omitted):
<TABLE>
<CAPTION>
Three Months
--------------------------------------------------------------------
Wholesale Residential
Manufacturing Retail Intercompany Consolidated
Operations Operations Eliminations Operations
----------------------- ----------------- ----------------- --------------- ----------------
<S> <C> <C> <C> <C>
Net Sales
1999 $1,082,923 $ - $ - $1,082,923
1998 809,732 55,399 (13,497) 851,634
Gross Margin
1999 292,650 - - 292,650
1998 188,368 20,824 - 209,192
Selling Expense
1999 112,309 - - 112,309
1998 74,799 19,841 - 94,640
----------------------- ----------------- ----------------- --------------- ----------------
Nine Months
--------------------------------------------------------------------
Wholesale Residential
Manufacturing Retail Intercompany Consolidated
Operations Operations Eliminations Operations
----------------------- ----------------- ----------------- --------------- ----------------
Net Sales
1999 $3,103,852 $ - $ - $3,103,852
1998 2,336,249 340,423 (86,904) 2,589,768
Gross Margin
1999 819,397 - - 819,397
1998 539,202 127,516 - 666,718
Selling Expense
1999 331,928 - - 331,928
1998 215,356 135,152 - 350,508
----------------------- ----------------- ----------------- --------------- ----------------
</TABLE>
10
<PAGE>
SHAW INDUSTRIES, INC. AND SUBSIDIARIES
ITEM TWO-MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
GENERAL
The company manufactures, markets and distributes a broad range of soft
floor covering products primarily consisting of broadloom tufted carpet. The
company also distributes hard floor covering products through its highly
developed distribution channel. The company operates in a business environment
comprised of numerous small customers and several large retailers and buying
groups. The company's customers in turn market floor covering and other products
to retail and other wholesale residential and commercial end-users. The company
experiences demand for its products primarily as a result of multi and single
family residential and commercial floor covering replacement, new commercial and
multi family residential construction, and, to a lesser extent, new single
family residential construction. This demand is driven by such end-user factors
as consumer spending on durable goods and general consumer confidence. The
company's profitability is dependent upon its ability to efficiently manage its
integrated manufacturing process to produce products meeting the style, color
and quality demanded by its customers and to deliver those products in a timely
manner.
During the first nine months of 1999, demand for the company's products
improved substantially, sales prices increased and margins improved over that of
the first nine months of 1998. The company's Australian sales volume improved in
the first nine months of 1999, although margins decreased slightly compared to
the first nine months of 1998 on higher material costs.
In August 1998, the company sold substantially all of its residential
retail operations to The Maxim Group, Inc. ("Maxim") and closed stores not sold.
On October 6, 1998, the company completed its merger with Queen Carpet
Corporation ("Queen") for $579.1 million, including 19.4 million shares of the
company's common stock, 3.15 million shares of Maxim stock acquired in the sale
of the company's residential retail operations, approximately $36 million of
cash and approximately $216 million of assumed debt. Based on estimates of the
fair values of assets and liabilities acquired, goodwill of $333.9 million has
been recorded and is being amortized over 40 years.
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (SFAS) No. 133, Accounting for Derivative
Instruments and Hedging Activities. The Statement establishes accounting and
reporting standards requiring that every derivative instrument be recorded in
the balance sheet as either an asset or liability measured at its fair value.
The Statement requires that changes in the derivative's fair value be recognized
currently in earnings unless specific hedge accounting criteria are met. Special
accounting for qualifying hedges allows a derivative's gains and losses to
offset related results on the hedged item in the income statement and requires
that a company formally assess the effectiveness of transactions that receive
hedge accounting. SFAS No. 133 is effective for the company's fiscal year 2001.
The company has not yet quantified the impact of adopting SFAS No. 133 on its
financial statements and has not determined the method of adoption. However, the
Statement could increase volatility in earnings and other comprehensive income.
LIQUIDITY AND CAPITAL RESOURCES
At October 2, 1999, the company had working capital of $555.9 million, a
decrease of $71.7 million from the working capital of $627.6 million at January
2, 1999.
Cash and cash equivalents increased $13.3 million to $25.9 million at
October 2, 1999 from $12.6 million at January 2, 1999. The company's operations
generated cash flow of $331.9 million in the first nine months of 1999,
principally from net income of $180.1 million adjusted for depreciation and
amortization of $70.1 million, an increase in accounts payable and accrued
liabilities of $133.8 million, offset in part by an increase in the carrying
value of inventories of $40.5 million. In the first nine months of 1998, cash
generated from operating activities was $304.3 million primarily from
depreciation and amortization of $58.4 million, a charge to record the loss on
sale of its residential retail operations, store closing costs and writedown of
certain assets of $92.7 million, a decrease in current assets of $63.9 million
and an increase in accounts payable and accrued liabilities of $84.9 million,
offset in part by a net loss of $6.1 million.
11
<PAGE>
In the first nine months of 1999, the company's investing activities
primarily included additions to property, plant and equipment, net of
retirements, of $86.0 million compared to additions to property, plant and
equipment, net of retirements, of $47.9 million and the disposal of U.K. assets
of $16.6 million, offset in part by the sale of residential operations of $14.4
million in the first nine months of 1998. Cash used in financing activities for
the first nine months of 1999 of $232.6 million included net payments on
long-term borrowings of $158.2 million, the purchase and retirement of common
stock of $79.5 million and cash dividends of $6.9 million, offset in part by
proceeds from the exercise of stock options of $12.0 million. Cash flow used in
financing activities for the first nine months of 1998 of $294.0 million
principally included net payments on long-term borrowings of $135.3 million, the
purchase and retirement of common stock of $176.4 million and the payment of
cash dividends of $9.8 million, offset in part by proceeds from the exercise of
stock options of $27.5 million.
During 1998, the company implemented EVA(R), a financial measurement
concept which emphasizes profitability, proper asset allocation, the cost of
capital and the creation of shareholder wealth. Effective use of capital and the
company's ability to generate cash flow from operations has enabled it to invest
in technologies which reduce production costs, generate operating margins that
have historically exceeded industry averages and pursue its strategy for
increasing shareholder value. Capital expenditures for property, plant and
equipment, net of retirements, necessary to maintain the company's facilities in
modern state-of-the-art condition, expand production capacity and increase
efficiency were $86.0 million for the nine months ended October 2, 1999.
Management anticipates total capital expenditures and capitalized lease
obligations of approximately $40 million for the remainder of 1999 to expand and
upgrade its manufacturing and distribution equipment to meet anticipated
increases in sales volume and to improve efficiency.
The company's primary source of financing is an unsecured revolving
credit facility with a banking syndicate. The facility provides for borrowings
of up to $1 billion and expires in March 2003. The interest rate on borrowings
under this facility is currently based on LIBOR and was approximately 6.3
percent, including applicable margins, at October 2, 1999. Borrowings
outstanding under this credit facility at October 2, 1999 were $696 million. To
provide further financing capacity, in November 1999 the company entered into a
364-day $200 million senior unsecured revolving credit facility.
The company maintains a receivables securitization program established
September 3, 1998 and expanded in the second quarter 1999 under which the
company sells a percentage ownership interest in a defined pool of the company's
trade receivables to a securitization conduit. The company used the initial
proceeds from the receivables securitization to reduce outstanding borrowings
under its domestic revolving credit facility. The receivables securitization
program expires August 30, 2000, but may be extended for additional one-year
terms. As of October 2, 1999, the company had approximately $297.1 million of
accounts receivable sold and outstanding under these programs.
The company believes that available borrowings under its existing credit
and securitization agreements, available cash and internally generated funds
will be sufficient to support its working capital, capital expenditures, stock
repurchases and debt service requirements for the foreseeable future. In
addition, the company believes it could further expand its revolving credit and
long-term bank facilities, if necessary.
YEAR 2000 READINESS DISCLOSURE
The company has completed its internal assessment of the year 2000
compliance of the systems and technologies supporting all operations of the
business. The company's assessment of external compliance readiness is ongoing.
The company has developed and is implementing plans to correct identified
compliance problems that would adversely affect the company's operations.
Compliance remediation efforts are proceeding on schedule. The majority of the
efforts have been completed, and compliance testing is underway.
The company has initiated inquiries of third parties with whom it has
significant business relationships, such as customers and vendors, to assess
their state of addressing Year 2000 issues that could materially and adversely
impact the company. The company has requested those third parties respond in
writing that they will be Year 2000 compliant by the end of 1999. The company
has incurred approximately $2.7 million to perform compliance remediation and
expects to incur an additional $.3 million in connection with the Year 2000
compliance process. These costs are expensed as incurred.
The company believes the most reasonably likely worst case Year 2000
scenario would be a failure by a non-core, peripheral system or a third-party
system impacting the availability of certain management information or the
exchange of data with certain customers or vendors.
The company has focused its remediation efforts on those problems which
it can reasonably be expected to influence and is currently developing a
contingency plan to address the most likely worst case scenario described above.
As a result, the company anticipates no significant disruption of business. If
the company cannot successfully and timely resolve its Year 2000 issues,
however, its business, results of operations and financial condition could be
materially and adversely affected.
12
<PAGE>
RESULTS OF OPERATIONS
The company's business consists of its wholesale manufacturing operations
which sell carpet and related products manufactured primarily in the company's
manufacturing facilities, located primarily in the southeastern U.S., to
wholesalers and retailers located primarily in the U.S., Canada, Australia and
Mexico. Beginning in 1996 and continuing through mid-1998, the company built and
acquired existing companies which were engaged in residential retail operations
which sold floor covering and related products acquired from the company's
wholesale manufacturing operations and other floor covering manufacturers
directly to residential consumers. The company evaluates the performance of its
operations on the basis of sales, gross margin and "net divisional contribution"
which consists of gross margin less selling expenses.
The following table summarizes key management information for the
company's operations (000's omitted) for the three and nine months ended October
2, 1999 and October 3, 1998:
<TABLE>
<CAPTION>
Three Months
------------------------------------------------------------------
Wholesale Residential
Manufacturing Retail Intercompany Consolidated
Operations Operations Eliminations Operations
- ----------------------------- ----------------- -------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Net Sales
1999 $1,082,923 $ - $ - $1,082,923
1998 809,732 55,399 (13,497) 851,634
Gross Margin
1999 292,650 - - 292,650
1998 188,368 20,824 - 209,192
Selling Expense
1999 112,309 - - 112,309
1998 74,799 19,841 - 94,640
- ----------------------------- ----------------- -------------- ---------------- ----------------
Nine Months
------------------------------------------------------------------
Wholesale Residential
Manufacturing Retail Intercompany Consolidated
Operations Operations Eliminations Operations
- ----------------------------- ----------------- -------------- ---------------- ----------------
Net Sales
1999 $3,103,852 $ - $ - $3,103,852
1998 2,336,249 340,423 (86,904) 2,589,768
Gross Margin
1999 819,397 - - 819,397
1998 539,202 127,516 - 666,718
Selling Expense
1999 331,928 - - 331,928
1998 215,356 135,152 - 350,508
- ----------------------------- ----------------- -------------- ---------------- ----------------
</TABLE>
Three Months Ended October 2, 1999 Compared to Three Months Ended October 3,
1998
Wholesale manufacturing sales increased $273.2 million in the three
months ended October 2, 1999 compared to the same period last year as a result
of the acquisition of Queen, increased overall demand, and to a lesser extent,
improvements in the mix of products sold and higher sales prices. Wholesale
manufacturing margins on outside sales increased to 27.0 percent from 23.7
percent on lower material costs and improved efficiencies resulting from higher
demand and the ongoing integration of the Queen operations, as well as the sales
improvements previously discussed. Wholesale manufacturing selling expense
increased to 10.4 percent in the third quarter 1999 from 9.4 percent in 1998 due
to continuing higher than normal sample costs as the company continues to regain
space in customer showrooms after the company's exit from the residential retail
business. As indicated above, substantially all residential retail operations
were sold or closed during 1998.
13
<PAGE>
As a result of the above, consolidated net sales increased $231.3
million, or 27.2 percent, to $1,082.9 million in the third quarter of 1999.
Consolidated gross margin as a percentage of net sales increased 2.4 percent to
27.0 percent in the third quarter of 1999 compared to the third quarter of 1998,
due to the performance of the wholesale manufacturing operations as previously
described.
Selling, general and administrative expenses for the third quarter of
1999 were $156.8 million, or 14.5 percent of net sales, compared to $128.1
million, or 15.0 percent of net sales, in the comparable period of 1998. The
decrease of .5 percent is due primarily to efficiencies gained by merging the
administrative and sales functions of Queen with the company, and as previously
discussed, improvements in sales, offset in part by the continuing heavy sample
costs. Interest expense was $15.3 million for the third quarter of 1999 compared
to $14.7 million for the third quarter of 1998 as higher interest rates offset
lower borrowings.
The effective income tax rate for the third quarter of 1999 was 40.8
percent compared to 40.5 percent for the third quarter of 1998 primarily due to
increased amortization of non-deductible goodwill.
Nine Months Ended October 2, 1999 Compared to Nine Months Ended October 3, 1998
Wholesale manufacturing sales increased $767.6 million in the first nine
months ended October 2, 1999 compared to the same period last year. The sales
increase was primarily the result of the acquisition of Queen and increased
demand as the company regained market share following its exit from the retail
business, offset in part by decreased sales as a result of the disposal of the
U.K. operations. Wholesale manufacturing margins on outside sales increased to
26.4 percent from 24.0 percent on lower material costs and improved efficiencies
resulting from higher demand and the ongoing integration of the Queen
operations. Wholesale manufacturing selling expense increased to 10.7 percent in
the first nine months of 1999 from 9.2 percent in 1998 due to increased
advertising and other selling expenses and higher sample costs after the
company's exit from the residential retail business. As indicated above,
substantially all residential retail operations were sold or closed during 1998.
As a result of the above, consolidated net sales increased $514.1
million, or 19.9 percent, to $3,103.9 million in the first nine months of 1999.
Gross margin as a percentage of net sales increased .6 percent to 26.4 percent
in the first nine months of 1999 compared to the first nine months of 1998,
primarily due to improved performance in wholesale manufacturing as previously
described, offset in part by the reduction in higher margin residential retail
sales.
Selling, general and administrative expenses for the first nine months of
1999 were $469.4 million, or 15.1 percent of net sales, compared to $472.2
million, or 18.2 percent of net sales, in the comparable period of 1998. The
decrease of $2.8 million, or 3.1 percent of net sales, was primarily due to the
company exiting the residential retail business. Interest expense was $46.6
million for the first nine months of 1999 compared to $45.5 million for the
first nine months of 1998 as higher interest rates offset lower borrowings.
The effective income tax rate for the first nine months of 1999 increased
to 41.0 percent compared to 40.7 percent for the first nine months of 1998
before the tax benefit from nonrecurring charges, primarily due to increased
amortization of non-deductible goodwill.
FORWARD-LOOKING INFORMATION
Certain statements in this report, including those regarding anticipated
total capital expenditures and capitalized lease obligations, availability of
funding for working capital, capital expenditures, stock repurchases and debt
service requirements, Year 2000 readiness and estimated remediation costs, and
the effects of litigation on the company's future results of operations, are
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1933,
as amended, and are subject to the safe harbor provisions of those Acts. When
used in this report, the words "believes," "expects," "anticipates," "estimates"
or "intends," and similar expressions, are intended to identify forward-looking
statements. The forward-looking statements herein involve a number of risks and
uncertainties that could cause actual results to differ materially from those
expressed or reflected in such statements. The important factors which may
affect the company's future results and could cause those results to differ
materially from the results expressed or reflected in the forward-looking
statements include, but are not limited to, the following: changes in economic
conditions generally; changes in consumer spending for durable goods, interest
rates and new housing starts; competition from other carpet, rug and floor
covering manufacturers; changes in raw material prices; the degree of success in
the integration of the company's recent acquisition; failure of the company's
vendors, customers and suppliers to timely identify and adequately address Year
2000 compliance issues; and other factors identified from time to time in the
company's reports and other filings with the Securities and Exchange Commission.
14
<PAGE>
ITEM THREE - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
No material changes occurred in the sources and effects of market risk
during the nine months ended October 2, 1999.
PART II - OTHER INFORMATION
ITEM ONE - LEGAL PROCEEDINGS
The company is a party to several lawsuits incidental to its various
activities and incurred in the ordinary course of business. The company believes
that it has meritorious claims and defenses in each case. After consultation
with counsel, it is the opinion of management that, although there can be no
assurance given, none of the associated claims, when resolved, will have a
material adverse effect upon the company.
The company is a defendant in certain litigation alleging personal injury
resulting from personal exposure to volatile organic compounds found in carpet
produced by the company. The complaints seek injunctive relief and unspecified
money damages on all claims. The company has denied any liability. The company
believes that it has meritorious defenses and that the litigation will not have
a material adverse effect on the company's financial condition or results of
operations.
In December 1995, the company learned that it was one of six carpet
companies named as additional defendants in a pending antitrust suit filed in
the United States District Court of Rome, Georgia. The amended complaint alleges
price-fixing regarding certain types of carpet products in violation of Section
1 of the Sherman Act. The amount of damages sought is not specified. If any
damages were to be awarded, they may be trebled under the applicable statute.
The company has filed an answer to the complaint that denies plaintiffs'
allegations and sets forth several defenses. In September 1997, the Court issued
an order certifying a nationwide plaintiff class of persons and entities who
purchased "mass production" polypropylene carpet directly from any of the
defendants from June 1, 1991 through June 30, 1995, excluding, among others, any
persons or entities whose only purchases were from any of the company's retail
establishments. Discovery began in November 1997 and recently concluded. The
company believes that it has meritorious defenses to plaintiffs' claims in the
lawsuits described in this paragraph and intends to defend these actions
vigorously. After consultation with counsel, it is the opinion of management
that, although there can be no assurance given, none of the claims described in
this paragraph, when resolved, will have a material adverse effect upon the
company.
On October 3, 1998, the company learned that it was one of five
defendants in a pending antitrust suit filed in the United States District Court
in Rome, Georgia. The complaint alleges price fixing regarding certain types of
carpet products in violation of Section 1 of the Sherman Act. The amount of
damages sought is not specified. If any damages were to be awarded, they may be
trebled under the applicable statute. The company has filed an answer to the
complaint. The company believes it has meritorious defenses to plaintiffs'
claims in the lawsuit described in this paragraph and intends to defend itself
vigorously. After consultation with counsel, it is the opinion of management
that, although there can be no assurance given, none of the claims described in
this paragraph, when resolved, will have a material adverse effect on the
company.
The company is also a party to four consolidated lawsuits pending in the
Superior Court of the State of California, City and County of San Francisco, all
of which were brought on behalf of a purported class of indirect purchasers of
carpet in the State of California and which seek damages for alleged violations
of California antitrust and fair competition laws. The company believes that it
has meritorious defenses to plaintiffs' claims in the lawsuits described in this
paragraph and intends to defend these actions vigorously. After consultation
with counsel, it is the opinion of management that, although there can be no
assurance given, none of the claims described in this paragraph, when resolved,
will have a material adverse effect upon the company.
The company is subject to a variety of environmental regulations relating
to the use, storage, discharge and disposal of hazardous materials used in its
manufacturing processes. Failure by the company to comply with present and
future regulations could subject it to future liabilities. In addition, such
regulations could require the company to acquire costly equipment or to incur
other significant expenses to comply with environmental regulations. The company
is not involved in any material environmental proceedings.
ITEM TWO - CHANGES IN SECURITIES AND USE OF PROCEEDS
None
ITEM THREE - DEFAULTS UPON SENIOR SECURITIES
None
ITEM FOUR - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM FIVE - OTHER INFORMATION
None
15
<PAGE>
ITEM SIX - EXHIBITS AND REPORTS ON FORM 8-K
(A) Exhibits
27 Financial Data Schedule
99.1 Fourth Amendment to the Amended and Restated Credit
Agreement dated as of August 20, 1999 among Shaw
Industries, Inc., the lenders appearing on the signature
pages thereto and Bank of America, N.A. (f/k/a NationsBank,
N.A.).
99.2 Fifth Amendment to the Amended and Restated Credit
Agreement dated as of October 15, 1999 among Shaw
Industries, Inc., the lenders appearing on the signature
pages thereto and Bank of America, N.A. (f/k/a NationsBank,
N.A.).
99.3 Credit Agreement, dated as of November 5, 1999, by and
among Shaw Industries, Inc., the lenders named therein,
Bank of America, N.A. (f/k/a NationsBank, N.A.) and
SunTrust Bank, Atlanta.
99.4 Guaranty dated as of November 5, 1999, delivered by Shaw
Contract Flooring Services, Inc. in favor of Bank of
America, N.A. (f/k/a NationsBank, N.A.).
(B) No reports on Form 8-K were filed during the fiscal quarter ended
October 2, 1999.
Shareholders may obtain copies of Exhibits without charge upon written
request to the Corporate Secretary, Shaw Industries, Inc., Mail drop 061-22,
P.O. Drawer 2128, Dalton, Georgia 30722-2128.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SHAW INDUSTRIES, INC.
-----------------------------------------
(The Registrant)
DATE: November 15, 1999 /s/ Robert E. Shaw
- -------------------------- -----------------------------------------
Robert E. Shaw
Chairman of the Board and Chief Executive
Officer
DATE: November 15, 1999 /s/ Kenneth G. Jackson
- -------------------------- -----------------------------------------
Kenneth G. Jackson
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
16
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT ("Fourth
Amendment") dated as of August 20, 1999 by and among SHAW INDUSTRIES, INC., a
corporation organized under the laws of the State of Georgia (the "Borrower"),
the Lenders appearing on the signature pages hereof (the "Lenders"), and BANK OF
AMERICA, N.A. (f/k/a NationsBank, N.A.), as Issuing Bank and Administrative
Agent.
WHEREAS, the Borrower, the Lenders, the Issuing Bank and the Agents
entered into that certain Amended and Restated Credit Agreement dated as of
March 16, 1998, as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of August 7, 1998, that certain Second
Amendment to Amended and Restated Credit Agreement dated as of October 6, 1998
and that certain Third Amendment to Amended and Restated Credit Agreement dated
as of October 15, 1998 (as so amended, the "Credit Agreement"), pursuant to
which the Lenders made certain financial accommodations available to the
Borrower;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement on the terms and conditions set forth herein; and
WHEREAS, the Lenders are willing to so amend the Credit Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties
hereto agree as follows:
Section 1. Specific Amendments to Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting the defined term
"Quarterly Dates" contained in Section 1.1 thereof and substituting in lieu
thereof the following:
" 'Quarterly Dates' means the last Business Day of March,
June, September and December of each year."
(b) The Credit Agreement is hereby further amended deleting the defined
term "Swing Line Amount" contained in Section 1.1 thereof and substituting in
lieu thereof the following:
" 'Swing Line Amount' means $75,000,000."
(c) The Credit Agreement is hereby further amended by deleting
subsection (d) contained in Section 5.5. thereof and substituting in lieu
thereof the following:
<PAGE>
"(d) Interest on Swing Line Loans. Subject to the provisions
of Section 5.6, interest on each Swing Line Loan shall accrue at an
interest rate per annum during the Interest Period for such Swing Line
Loan equal to the Money Market Rate for such Interest Period then in
effect for such Swing Line Loan and shall be payable (i) on the last
Business Day of each calendar month and (ii) at the maturity (other
than the end of the Interest Period with respect thereto) of such Swing
Line Loan (and after maturity (whether by acceleration or otherwise)
upon demand). All determinations by the Swing Line Lender of an
interest rate hereunder shall be conclusive and binding on the Borrower
for all purposes, absent manifest error."
(d) The Credit Agreement is hereby further amended by deleting the last
sentence contained in subsection (a) of Section 5.15. thereof and substituting
in lieu thereof the following:
"The foregoing fees shall be calculated on a per annum basis
and shall be paid in arrears (a) on the Effective Date and (b) on each
Quarterly Date thereafter, and such fees shall be deemed fully earned
when due and non-refundable."
Section 2. Effectiveness of Amendment.
This Fourth Amendment, and the amendments effected hereby, shall be
effective only upon the satisfaction of each of the following conditions
precedent to effectiveness:
(a) this Fourth Amendment shall be executed and delivered by each of
the Borrower, the Issuing Bank, the Administrative Agent and the Requisite
Lenders; and
(b) the Administrative Agent shall have received a certificate dated
the date hereof from the Chief Financial Officer or the Treasurer of the
Borrower certifying that, immediately prior to and after giving effect to the
amendment contemplated hereby, no Default or Event of Default under the Credit
Agreement exists.
Section 3. Representations and Warranties.
(a) In order to induce the Lenders to enter into this Fourth Amendment,
the Borrower hereby reaffirms each of the representations and warranties of the
Borrower contained in the Credit Agreement as of the date hereof except for
either: (i) the occurrence of any event that would render such representations
or warranties untrue, but that is expressly permitted by the terms of the Credit
Agreement or which would not cause an Event of Default under the Credit
Agreement or (ii) the occurrence of any event that would render such
representations or warranties untrue but that previously has been disclosed in
writing to the Lenders.
(b) The execution, delivery and performance of this Fourth Amendment by
the Borrower does not require the consent of any other Person under any
document, instrument or agreement to which the Borrower is a party or under
which the Borrower is bound.
2
<PAGE>
Section 4. References to the Credit Agreement.
Each reference to the Credit Agreement in any of the Loan Documents
shall be deemed to be a reference to the Credit Agreement, as amended by this
Fourth Amendment, and as the same may be further amended, restated, supplemented
or otherwise modified from time to time in accordance with Section 13.6 of the
Credit Agreement. Further, the Borrower and the Lenders hereby acknowledge and
agree that all references to "NationsBank, N.A." in its individual capacity or
in its capacity as Issuing Bank and/or Administrative Agent (and any defined
term used to designate "NationsBank, N.A." in its individual capacity or in its
capacity as Issuing Bank and/or Administrative Agent) contained in the Credit
Agreement and the other Loan Documents shall be deemed to be references to "Bank
of America, N.A.".
Section 5. Benefits.
This Fourth Amendment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
Section 6. GOVERNING LAW.
THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 7. Effect.
Except as expressly herein amended, the terms and conditions of the
Credit Agreement shall remain in full force and effect without amendment or
modification, express or implied.
Section 8. Counterparts.
This Fourth Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns.
Section 9. Definitions.
All capitalized terms which are used herein and not otherwise defined
herein shall have the meanings given such terms as set forth in the Credit
Agreement.
[Signatures Contained on Following Page]
3
<PAGE>
[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Shaw Industries, Inc.]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to Amended and Restated Credit Agreement to be executed under seal by
their duly authorized officers as of the date first above written.
THE BORROWER:
SHAW INDUSTRIES, INC.
By: ________________________________________________
Title: _____________________________________________
THE ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________________
Title: _____________________________________________
4
<PAGE>
[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Shaw Industries, Inc.]
THE LENDERS:
BANK OF AMERICA, N.A., as a Lender, Issuing Bank and
Swing Line Lender
By: ________________________________________________
Title: _____________________________________________
SUNTRUST BANK, ATLANTA
By: ________________________________________________
Title: _____________________________________________
By: ________________________________________________
Title: _____________________________________________
WACHOVIA BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
FIRST UNION NATIONAL BANK
By: ________________________________________________
Title: _____________________________________________
THE FIRST NATIONAL BANK OF CHICAGO
By: ________________________________________________
Title: _____________________________________________
5
<PAGE>
[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Shaw Industries, Inc.]
THE FUJI BANK, LIMITED, ATLANTA AGENCY
By: ________________________________________________
Title: _____________________________________________
SOUTHTRUST BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: ________________________________________________
Title: _____________________________________________
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: ________________________________________________
Title: _____________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: ________________________________________________
Title: _____________________________________________
6
<PAGE>
[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Shaw Industries, Inc.]
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY
By: ________________________________________________
Title: _____________________________________________
7
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT ("Fifth
Amendment") dated as of October 15, 1999 by and among SHAW INDUSTRIES, INC., a
corporation organized under the laws of the State of Georgia (the "Borrower"),
the Lenders appearing on the signature pages hereof (the "Lenders"), and BANK OF
AMERICA, N.A. (f/k/a NationsBank, N.A.), as Issuing Bank and Administrative
Agent.
WHEREAS, the Borrower, the Lenders, the Issuing Bank and the
Administrative Agent entered into a certain Amended and Restated Credit
Agreement dated as of March 16, 1998, as amended by that certain First Amendment
to Amended and Restated Credit Agreement dated as of August 7, 1998, that
certain Second Amendment to Amended and Restated Credit Agreement dated as of
October 6, 1998, that certain Third Amendment to Amended and Restated Credit
Agreement dated as of October 15, 1998 and that certain Fourth Amendment to
Amended and Restated Credit Agreement dated as of August 20, 1999 (as so
amended, the "Credit Agreement"), pursuant to which the Lenders made certain
financial accommodations available to the Borrower;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement on the terms and conditions set forth herein; and
WHEREAS, the Lenders are willing to so amend the Credit Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties
hereto agree as follows:
Section 1. Specific Amendments to Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting the defined term
"Applicable Margin " contained in Section 1.1 thereof and substituting in lieu
thereof the following:
"'Applicable Margin' means, at any time from and after the
Fifth Amendment Effective Date, the percentage rate set forth below for
a given Type of Loan corresponding to the Consolidated Funded
Debt/EBITDA Ratio of the Borrower in effect at such time:
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Consolidated Funded Applicable Margin for Applicable Margin for
Debt/EBITDA Ratio Base Rate Loans LIBOR Loans
--------------------------------------------- --------------------------- --------------------------
Greater than 3.50 to 1.00 0% 0.85%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 3.50 to 1.00 but
greater than 3.00 to 1.00 0% 0.65%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 3.00 to 1.00 but
greater than 2.50 to 1.00 0% 0.55%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 2.50 to 1.00 but
greater than 2.00 to 1.00 0% 0.45%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 2.00 to 1.00 0% 0.32%
--------------------------------------------- --------------------------- --------------------------
</TABLE>
On each Adjustment Date (as defined below), the Applicable Margin for
all Syndicate Loans shall be determined and adjusted by the
Administrative Agent, such adjustment to be effective on and as of each
such Adjustment Date (based upon the calculation of the Consolidated
Funded Debt/EBITDA Ratio as of the last day of the fiscal quarter to
which such Adjustment Date relates) in accordance with the above
matrix; provided, however, that, with respect to any LIBOR Loans
outstanding on the Adjustment Date, no such adjustment shall be made to
the Applicable Margin relating to such LIBOR Loan until the end of the
Interest Period then in effect for such LIBOR Loan. For purposes of
this definition, "Adjustment Date" shall mean (a) initially, the Fifth
Amendment Effective Date (based on the Consolidated Funded Debt/EBITDA
Ratio as of the last day of the fiscal quarter of the Borrower ending
immediately prior to the Fifth Amendment Effective Date for which
financial statements have been provided in accordance with Section 9.1
or 9.2, as applicable); and (b) thereafter, the date (and if such date
is not a Business Day, on the next succeeding Business Day) on which
the Borrower delivers, in accordance with Sections 9.1., 9.2. and 9.3.,
to the Administrative Agent (i) financial statements for the most
recently completed applicable fiscal quarter and (ii) a duly completed
Compliance Certificate with respect to such fiscal quarter (based on
the Consolidated Funded Debt/EBITDA Ratio as of the last day of the
fiscal quarter of the Borrower for which such financial statements are
being delivered)."
(b) The Credit Agreement is hereby further amended by adding the
following new defined term to Section 1.1 thereof in the appropriate
alphabetical order:
"'Fifth Amendment Effective Date' means the "Trigger Date"
under and as defined in that certain Fifth Amendment to Amended and
Restated Credit Agreement dated as of October 15, 1999 among the
Borrower, the Lenders named therein, the Issuing Bank and the
Administrative Agent."
(c) The Credit Agreement is hereby further amended by deleting
subsection (b) contained in Section 10.1. thereof in its entirety and by
redesignating subsection (c) of Section 10.1. as subsection (b).
2
<PAGE>
(d) The Credit Agreement is hereby further amended by deleting Section
5.14. thereof in its entirety and substituting in lieu thereof the following:
"Section 5.14. Facility Fee.
The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee for the period from the Fifth
Amendment Effective Date through and including the Termination Date on
the amount of the Revolving Commitment from time to time in effect and
regardless of whether and to the extent the Revolving Commitment is
utilized hereunder. The facility fee shall be calculated on a
percentage per annum basis using the percentage rates set forth below
corresponding to the Consolidated Funded Debt/EBITDA Ratio in effect at
such time:
<TABLE>
<CAPTION>
<S> <C>
Consolidated Funded Debt/EBITDA Ratio Facility Fee Percentage
---------------------------------------------------------------------- ---------------------------
Greater than 3.50 to 1.00 .275%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 3.50 to 1.00 but greater than 3.00 to 1.00 .225%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00 .20%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00 .175%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 2.00 to 1.00 .125%
---------------------------------------------------------------------- ---------------------------
</TABLE>
The facility fee shall be determined by the Administrative Agent on a
quarterly basis in accordance with the following provisions. The
Consolidated Funded Debt/EBITDA Ratio shall be determined and adjusted
by the Administrative Agent promptly upon receipt of the financial
statements required to be delivered by the Borrower to the
Administrative Agent and the Lenders pursuant to Section 9.1. or 9.2.,
as applicable. Any adjustment to the facility fee shall be effective as
of the first day of the fiscal quarter in which the quarterly (or
annual) financial statements are delivered to the Administrative Agent
and the Lenders. The facility fee hereunder shall be payable in arrears
on (a) each Quarterly Date, (b) the date of each reduction in the
Revolving Commitment (but only on the amount of the reduction), (c) on
the Termination Date, (d) on the date the Commitments are otherwise
terminated or reduced to zero and (e) thereafter from time to time on
demand of the Administrative Agent. The Administrative Agent and the
Lenders acknowledge that, from the Effective Date to (but excluding)
the Fifth Amendment Effective Date, the fees payable under this Section
5.14. shall be calculated and determined based on the "Facility Fee
Percentage" in effect during such period."
3
<PAGE>
(e) The Credit Agreement is hereby further amended by inserting the
following new Section 10.5.:
"Section 10.5. Restricted Payments.
Declare or make any dividend payment, or make any other
distribution of cash, property or assets, in respect of any of its
capital stock or any warrants, rights or options to acquire its
capital stock, or purchase, redeem, retire or otherwise acquire for
value any shares of its capital stock or any warrants, rights or
options to acquire its capital stock, or set aside funds for any of
the foregoing (collectively, "Restricted Payments") or cause or permit
any Subsidiary to do any of the foregoing, except that:
(a) the Borrower may declare and make dividend payments or
other distributions payable solely in its common stock;
(b) Subsidiaries may declare or make Restricted Payments to
the Borrower or any intermediate Subsidiaries of the
Borrower; and
(c) so long as no Default or Event of Default then exists or
would result therefrom, the Borrower may, during the
period from the Fifth Amendment Effective Date through
the Termination Date, declare and make Restricted
Payments; provided, that the aggregate amount of all
such Restricted Payments under this subsection (c) shall
not exceed the Permitted Amount (as defined below). For
purposes of this Section 10.5, the term "Permitted
Amount" shall mean an amount equal to: (1) $400,000,000
plus (2) net cash proceeds (net of Transaction Costs)
received by the Borrower from the sale of any or all of
its international business operations after the Fifth
Amendment Effective Date in an aggregate amount up to
but not to exceed $100,000,000 minus (3) the aggregate
amount of Restricted Payments (other than those
described in clauses (a) and (b) of this Section 10.5.)
in excess of $50,000,000 made by the Borrower during the
period from October 15, 1999 through and including the
Fifth Amendment Effective Date."
(f) The Credit Agreement is hereby further amended by deleting the
Exhibit J thereto and substituting in lieu thereof the Exhibit J attached hereto
as Exhibit A.
Section 2. Effectiveness of Amendment.
(a) This Fifth Amendment shall be effective on the date on which this
Fifth Amendment shall be duly executed and delivered by the Borrower, the
Issuing Bank, the Administrative Agent and the Requisite Lenders.
4
<PAGE>
(b) Notwithstanding anything herein or otherwise to the contrary, the
amendments contemplated by Section 1 of this Fifth Amendment shall not be or
become effective until the date (the "Trigger Date") each of the following
conditions precedent to effectiveness shall have been satisfied as determined by
the Administrative Agent:
(i) the Administrative Agent and the Lenders shall have
received written notice from the Borrower on or prior to April 15, 2000
requesting that this Fifth Amendment shall be and become effective; and
(ii) the Administrative Agent shall have received a
certificate dated the date of the notice referred to in clause (i)
immediately above from the Chief Financial Officer or the Treasurer of
the Borrower certifying that, immediately prior to and after giving
effect to the amendment contemplated hereby, no Default or Event of
Default under the Credit Agreement exists.
Section 3. Representations and Warranties.
(a) In order to induce the Lenders to enter into this Fifth Amendment,
the Borrower hereby reaffirms each of the representations and warranties of the
Borrower contained in the Credit Agreement as of the date hereof except for
either: (i) the occurrence of any event that would render such representations
or warranties untrue, but that is expressly permitted by the terms of the Credit
Agreement or which would not cause an Event of Default under the Credit
Agreement or (ii) the occurrence of any event that would render such
representations or warranties untrue but that previously has been disclosed in
writing to the Lenders.
(b) The execution, delivery and performance of this Fifth Amendment by
the Borrower does not require the consent of any other Person under any
document, instrument or agreement to which the Borrower is a party or under
which the Borrower is bound.
Section 4. Benefits.
This Fifth Amendment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
Section 5. GOVERNING LAW.
THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
5
<PAGE>
Section 6. Effect.
Except as expressly herein amended, the terms and conditions of the
Credit Agreement shall remain in full force and effect without amendment or
modification, express or implied.
Section 7. Counterparts.
This Fifth Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns.
Section 8. Definitions.
All capitalized terms which are used herein and not otherwise defined
herein shall have the meanings given such terms as set forth in the Credit
Agreement.
[Signatures Contained on Following Page]
6
<PAGE>
[Signature Page to Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 15, 1999 with Shaw Industries, Inc.]
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to Amended and Restated Credit Agreement to be executed under seal by their duly
authorized officers as of the date first above written.
THE BORROWER:
SHAW INDUSTRIES, INC.
By: ________________________________________________
Title: _____________________________________________
THE ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________________
Title: _____________________________________________
7
<PAGE>
[Signature Page to Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 15, 1999 with Shaw Industries, Inc.]
THE LENDERS:
BANK OF AMERICA, N.A., as a Lender, Issuing Bank and
Swing Line Lender
By: ________________________________________________
Title: _____________________________________________
SUNTRUST BANK, ATLANTA
By: ________________________________________________
Title: _____________________________________________
By: ________________________________________________
Title: _____________________________________________
WACHOVIA BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
FIRST UNION NATIONAL BANK
By: ________________________________________________
Title: _____________________________________________
BANK ONE, NA
By: ________________________________________________
Title: _____________________________________________
8
<PAGE>
[Signature Page to Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 15, 1999 with Shaw Industries, Inc.]
SOUTHTRUST BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: ________________________________________________
Title: _____________________________________________
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: ________________________________________________
Title: _____________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: ________________________________________________
Title: _____________________________________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY
By: ________________________________________________
Title: _____________________________________________
9
<PAGE>
EXHIBIT A
<PAGE>
EXHIBIT J
FORM OF COMPLIANCE CERTIFICATE
For the quarter ending _________, _____
Bank of America, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Agency Services
Each of the Lenders a party to
the Credit Agreement (defined below)
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"; capitalized terms used herein, and not
otherwise defined herein, shall have their respective defined meanings as set
forth in the Credit Agreement) among Shaw Industries, Inc. (the "Borrower"), the
Lenders named therein, and Bank of America, N.A., as Issuing Bank and
Administrative Agent (the "Administrative Agent").
Pursuant to Section 9.3 of the Credit Agreement, the undersigned hereby
certifies to the Administrative Agent, the Issuing Bank and the Lenders as
follows:
(1)______The undersigned is the [Treasurer/Chief Financial Officer/
independent public accountant] of the Borrower.
(2)______The undersigned has examined the books and records of the
Borrower and has conducted such other examinations and investigations as are
reasonably necessary to provide this Compliance Certificate.
(3)______The Borrower is in compliance with Articles 9 and 10 of the
Credit Agreement and no Default or Event of Default has occurred and is
continuing [for Compliance Certificate delivered by Treasurer or Chief Financial
Officer only].
The undersigned hereby further certifies to the Administrative Agent,
the Issuing Bank and the Lenders that the following financial information of the
Borrower is true and correct as of the date hereof:
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
I. EBIT to Interest Ratio (ss.10.1(a))1
A. Consolidated EBIT for Four-Quarter Period:
Consolidated Net Income $_________________
plus, to the extent deducted in
determining Consolidated Net Income:
Consolidated Interest Expense $_________________
Income Taxes $_________________
Consolidated EBIT: $
B. Consolidated Interest Expense for
Four-Quarter Period: $_________________
C. EBIT to Interest Ratio (A divided by B): _________:1:00 minimum ratio required: 2.25 to 1.00
II. Consolidated Funded Debt to EBITDA (ss.10.1(b))
A. Consolidated Funded Debt Outstanding: $_________________
B. Consolidated EBITDA for Four-Quarter Period:
Consolidated Net Income $_________________
plus, to the extent deducted in determining
Consolidated Net Income
Consolidated Interest Expense, plus $_________________
Income Taxes, plus $_________________
Depreciation, plus $_________________
Amortization $_________________
Consolidated EBITDA: $
C. Consolidated Funded Debt to EBITDA Ratio (A divided by B): _________:1:00 maximum ratio permitted: 4.00 to 1.00
III. Indebtedness (ss.10.2)
A. Capital Lease Debt/Purchase Money Debt Outstanding:
$_________________ maximum allowed: $50,000,000
B. Consolidated Funded Debt incurred after Effective Date
plus Indebtedness related to Nylon Polymer $_________________ maximum allowed: [20% of Total Assets]
(ss.10.2(f)(iii)):
C. Sold Receivables Indebtedness: $_________________ maximum allowed: $325,000,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
IV. Restricted Payments (ss.10.5)
A. Restricted Payments made since Fifth Amendment Effective
Date other than those described in Section 10.5(a) and $_________________
(b):
B. Permitted Amount as of the date
hereof:
$400,000,000
plus net cash proceeds received from sale of international business
operations after Fifth Amendment Effective Date (not to exceed
$100,000,000) $_______________
minus aggregate Restricted Payments made between October 15, 1999 and
Fifth Amendment Effective Date in excess of $50,000,000
$---------------
Permitted Amount as of the date hereof:
$-----------------
C. Test - Item A must be less than or equal to Item B Yes: ___ No: ___
V. Year-end Certificate only - Operating Leases (ss.10.9)
Aggregate amount of all rents paid under operating leases
during fiscal year: $_________________ maximum allowed: $100,000,000
VI. Year-end Certificate only - Investments (ss.10.3(vii))
Aggregate amount of all non-acquisition related
investments during fiscal year: $_________________ maximum allowed: $50,000,000
</TABLE>
<PAGE>
Based on the Consolidated Funded Debt to EBITDA Ratio described above
in item III.C. above, the undersigned hereby confirms that the facility fee
percentage payable pursuant to Section 5.14 of the Credit Agreement on and after
the Fifth Amendment Effective Date2 is _____% and the Applicable Margin for
LIBOR Loans on and after the Fifth Amendment Effective Date is ______%.
<TABLE>
<CAPTION>
<S> <C> <C>
Consolidated Funded Facility Fee Applicable Margin
Debt/EBITDA Ratio Percentage for LIBOR Loans
-------------------------------------- --------------------- ----------------------
Greater than 3.50 to 1.00 .275% 0.85%
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .225% 0.65%
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.00 to 1.00
but greater than 2.50 to 1.00 .20% 0.55%
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.50 to 1.00
but greater than 2.00 to 1.00 .175% 0.45%
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.00 to 1.00 .125% 0.32%
-------------------------------------- --------------------- ----------------------
</TABLE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the day of __________, ____.
By:
Title:
- --------
1 Section references contained herein are references to the section of the
Credit Agreement requesting the respective financial data.
2 In accordance with Section 5.14., from the Effective Date to (but
excluding) the Fifth Amendment Effective Date, the fees payable under such
Section shall be calculated and determined based on the "Facility Fee
Percentage" in effect during such period.
================================================================================
CREDIT AGREEMENT
Dated as of November 5, 1999
by and among
Shaw Industries, Inc., as Borrower,
the Lenders named herein,
BANK OF AMERICA, N.A., as Administrative Agent,
and
SUNTRUST BANK, ATLANTA, as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
================================================================================
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..........................................................................1
Section 1.1. Definitions.............................................................1
Section 1.2. General.................................................................18
ARTICLE 2. SYNDICATE LOAN CREDIT FACILITY.......................................................18
Section 2.1. Syndicate Loans.........................................................18
Section 2.2. Borrowings of Syndicate Loans...........................................18
Section 2.3. Disbursements of Syndicate Loans........................................19
Section 2.4. Repayment of Syndicate Loans............................................20
Section 2.5. Several Obligations.....................................................20
Section 2.6. Continuation and Conversion of Syndicate Loans..........................20
Section 2.7. Unavailability of Certain Loans; Illegality.............................22
Section 2.8. Treatment of Affected Loans.............................................22
Section 2.9. Compensation............................................................23
Section 2.10. Voluntary Reductions of the Revolving Commitment........................24
ARTICLE 3. OTHER LOAN AND PAYMENT PROVISIONS....................................................24
Section 3.1. Maximum Amount of Obligations...........................................24
Section 3.2. Mandatory Prepayment of Loans...........................................24
Section 3.3. Voluntary Prepayment of Loans...........................................24
Section 3.4. Maximum Number of Interest Periods for Loans............................25
Section 3.5. Rates and Payment of Interest on Loans..................................25
Section 3.6. Interest Upon Event of Default..........................................25
Section 3.7. Notes...................................................................25
Section 3.8. Computations............................................................26
Section 3.9. Usury...................................................................26
Section 3.10. Agreement Regarding Interest and Charges................................26
Section 3.11. Payments................................................................26
Section 3.12. Pro Rata Treatment......................................................27
Section 3.13. Sharing of Payments, Etc................................................27
Section 3.14. Facility Fee............................................................28
Section 3.15. Utilization Fee.........................................................29
Section 3.16. Administrative Agent and Lender Participation Fees......................29
Section 3.17. Increased Costs/Capital Adequacy........................................30
Section 3.18. Statements of Account...................................................31
Section 3.19. Defaulting Lender's Status..............................................31
Section 3.20. Administrative Agent's Reliance.........................................32
Section 3.21. Taxes...................................................................32
Section 3.22. Affected Lenders........................................................34
Section 3.23. Change of Lending Office................................................34
ARTICLE 4. CONDITIONS PRECEDENT.................................................................35
Section 4.1. Conditions Precedent to Initial Loan....................................35
Section 4.2. Conditions Precedent to All Syndicate Loans.............................36
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.......................................................37
Section 5.1. Representations and Warranties..........................................37
Section 5.2. Survival of Representations and Warranties, Etc.........................42
ARTICLE 6. AFFIRMATIVE COVENANTS................................................................43
Section 6.1. Preservation of Existence and Similar Matters...........................43
Section 6.2. Compliance with Applicable Law..........................................43
Section 6.3. Maintenance of Property.................................................43
Section 6.4. Conduct of Business.....................................................43
Section 6.5. Insurance...............................................................43
Section 6.6. Payment of Taxes and Claims.............................................44
Section 6.7. Visits and Inspections..................................................44
Section 6.8. Use of Proceeds.........................................................44
Section 6.9. Material Subsidiaries...................................................44
Section 6.10. Environmental Matters...................................................44
Section 6.11. Performance of Obligations..............................................45
ARTICLE 7. INFORMATION..........................................................................45
Section 7.1. Quarterly Financial Statements..........................................45
Section 7.2. Year-End Statements.....................................................46
Section 7.3. Compliance Certificate..................................................46
Section 7.4. Notice of Litigation and Other Matters..................................46
Section 7.5. ERISA Reporting.........................................................47
Section 7.6. Copies of Other Reports.................................................49
Section 7.7. Other Information.......................................................49
ARTICLE 8. NEGATIVE COVENANTS...................................................................49
Section 8.1. Financial Covenants.....................................................49
Section 8.2. Indebtedness............................................................50
Section 8.3. Investments/Acquisitions................................................51
Section 8.4. Liens/Agreements Regarding Liens/Other Matters..........................53
Section 8.5. Restricted Payments.....................................................53
Section 8.6. Merger, Consolidation, Sales of Assets and Other Arrangements...........54
Section 8.7. Sale-Leasebacks.........................................................55
Section 8.8. Transactions with Affiliates............................................55
Section 8.9. Operating Leases........................................................55
Section 8.10. Plans...................................................................56
Section 8.11. Fiscal Year.............................................................56
Section 8.12. Margin Regulations......................................................57
ARTICLE 9. DEFAULT..............................................................................57
Section 9.1. Events of Default.......................................................57
Section 9.2. Remedies................................................................60
Section 9.3. Rights Cumulative.......................................................61
ARTICLE 10. THE AGENT...........................................................................61
Section 10.1. Authorization and Action................................................61
Section 10.2. Administrative Agent's Reliance, Etc....................................62
Section 10.3. Bank of America as Lender...............................................63
Section 10.4. Lender Credit Decision, Etc.............................................63
Section 10.5. Knowledge of Default....................................................64
Section 10.6. Indemnification.........................................................64
Section 10.7. Successor Administrative Agent..........................................65
ARTICLE 11. MISCELLANEOUS.......................................................................65
Section 11.1. Notices.................................................................65
Section 11.2. Expenses................................................................67
Section 11.3. Setoff..................................................................68
Section 11.4. Litigation/Jurisdiction/Other Matters/Waivers...........................68
Section 11.5. Assignability and Participations........................................69
Section 11.6. Amendments..............................................................71
Section 11.7. Nonliability of Administrative Agent, Documentation Agent, Arranger and Lenders.72
Section 11.8. Information.............................................................72
Section 11.9. Indemnification.........................................................73
Section 11.10. Survival...............................................................75
Section 11.11. Titles and Captions....................................................75
Section 11.12. Severability of Provisions.............................................75
Section 11.13. Governing Law..........................................................76
Section 11.14. Counterparts...........................................................76
Section 11.15. Obligations with Respect to Loan Parties...............................76
Section 11.16. Independent Nature of Lenders' Rights..................................76
Section 11.17. No Fiduciary Relationship..............................................76
Section 11.18. Limitation of Liability................................................76
Section 11.19. Entire Agreement........................................................77
Section 11.20. Construction...........................................................77
Annex I List of Lenders, Commitments, Credit Percentages and Lending Offices
Schedule 1.1.(a) Existing Consolidated Funded Debt
Schedule 1.1.(b) Existing Liens
Schedule 5.1.(b) Ownership Structure
Schedule 5.1.(h) Litigation
Schedule 5.1.(m) Environmental Non-Compliance
Schedule 5.1.(q) Affiliate Transactions
Schedule 8.3.(a) Existing Investments
Exhibit A Form of Notice of Syndicate Borrowing
Exhibit B Form of Notice of Continuation
Exhibit C Form of Notice of Conversion
Exhibit D Form of Syndicate Note
Exhibit E Form of Opinion of Counsel to the Borrower and the other Loan Parties
Exhibit F Form of Guaranty
Exhibit G Form of Assignment and Assumption Agreement
Exhibit H Form of Compliance Certificate
</TABLE>
<PAGE>
THIS CREDIT AGREEMENT dated as of November 5, 1999 by and among SHAW
INDUSTRIES, INC., a corporation organized under the laws of the State of Georgia
(the "Borrower"), the Lenders named herein, BANK OF AMERICA, N.A., as
Administrative Agent and SUNTRUST BANK, ATLANTA, as Documentation Agent.
WHEREAS, the Borrower desires to obtain a revolving credit facility on
the terms and conditions hereof; and
WHEREAS, the Lenders are willing to extend credit to the Borrower on
the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Adjusted LIBO Rate" means, for any LIBOR Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100th of 1%) determined by the Administrative Agent to be equal to the
quotient obtained by dividing (a) LIBOR for such LIBOR Loan for such Interest
Period by (b) 1 minus the Reserve Requirement for such LIBOR Loan for such
Interest Period.
"Administrative Agent" means Bank of America, N.A., as agent for the
Lenders under the terms of this Agreement, and any successor agent.
"Affiliate" means any Person (other than the Administrative Agent or
any Lender): (a) directly or indirectly controlling, controlled by, or under
common control with, the Borrower; (b) directly or indirectly owning or holding
five percent (5%) or more of any equity interest in the Borrower; or (c) five
percent (5%) or more of whose voting stock or other equity interest is directly
or indirectly owned or held by the Borrower. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable laws, including all applicable
provisions of constitutions, statutes, rules, ordinances, regulations and orders
of all Governmental Authorities and all orders, rulings, writs and decrees of
all courts, tribunals and arbitrators.
"Applicable Margin" means, at any time, the percentage rate set forth
below for a given Type of Loan corresponding to the Consolidated Funded
Debt/EBITDA Ratio of the Borrower in effect at such time:
<TABLE>
<CAPTION>
<S> <C> <C>
Consolidated Funded Applicable Margin for Applicable Margin for
Debt/EBITDA Ratio Base Rate Loans LIBOR Loans
--------------------------------------------- --------------------------- --------------------------
Greater than 3.50 to 1.00 0% 0.875%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 3.50 to 1.00 but
greater than 3.00 to 1.00 0% 0.675%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 3.00 to 1.00 but
greater than 2.50 to 1.00 0% 0.575%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 2.50 to 1.00 but
greater than 2.00 to 1.00 0% 0.475%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 2.00 to 1.00 0% 0.30%
--------------------------------------------- --------------------------- --------------------------
</TABLE>
On each Adjustment Date (as defined below), the Applicable Margin for all Loans
shall be determined and adjusted by the Administrative Agent, such adjustment to
be effective on and as of each such Adjustment Date (based upon the calculation
of the Consolidated Funded Debt/EBITDA Ratio as of the last day of the fiscal
quarter to which such Adjustment Date relates) in accordance with the above
matrix; provided, however, that, with respect to any LIBOR Loans outstanding on
the Adjustment Date, no such adjustment shall be made to the Applicable Margin
relating to such LIBOR Loan until the end of the Interest Period then in effect
for such LIBOR Loan. For purposes of this definition, "Adjustment Date" shall
mean the date (and if such date is not a Business Day, on the next succeeding
Business Day) on which the Borrower delivers, in accordance with Sections 7.1.,
7.2. and 7.3., to the Administrative Agent (i) financial statements for the most
recently completed applicable fiscal quarter and (ii) a duly completed
Compliance Certificate with respect to such fiscal quarter (based on the
Consolidated Funded Debt/EBITDA Ratio as of the last day of the fiscal quarter
of the Borrower for which such financial statements are being delivered).
Notwithstanding the foregoing, for the period from the Effective Date through
and including the first Adjustment Date, the Applicable Margin for Base Rate
Loans shall equal 0% and the Applicable Margin for LIBOR Loans shall equal
.475%. Thereafter, the Applicable Margin shall be adjusted from time to time as
set forth above.
"Arranger" means Banc of America Securities LLC.
"Assignment Agreement" has the meaning given that term in Section 11.5.
(c).
"Available Revolving Commitment" means, on any date of determination
thereof: (a) the Revolving Commitment in effect on such date minus (b) the
aggregate outstanding principal amount of all Loans on such date.
"Bank of America" means Bank of America, N.A., in its individual
capacity and not as an Agent, and its successors and assigns.
"Base Rate" means, for any day, the rate per annum equal to the higher
of: (a) the Federal Funds Rate for such day plus one-half of one percent (0.5%)
per annum and (b) the Prime Rate for such day. Any change in the Base Rate due
to a change in the Prime Rate or the Federal Funds Rate, as the case may be,
shall be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate, as the case may be.
"Base Rate Loans" means Loans bearing interest at a rate based on the
Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
"Borrowing" means a borrowing by the Borrower of Loans pursuant to
Section 2.2.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks in Atlanta, Georgia or New York, New York are authorized or
required to close.
"Business Unit" means the assets constituting the business or a
division or operating unit thereof of any Person.
"Capitalized Lease Obligation" means, with respect to any Person at any
time of determination, the obligations of such Person under a lease that are
required to be classified and accounted for as capital lease obligations in
accordance with GAAP, and the amount of such obligations at any date shall be
the capitalized amount of such obligations at such date determined in accordance
with GAAP.
"Cash Equivalents" means: (i) securities issued, guaranteed or insured
by the United States or any of its agencies with maturities of not more than one
year from the date acquired; (ii) certificates of deposit with maturities of not
more than one year from the date acquired issued by a U.S. federal or state
chartered commercial bank of recognized standing, which has capital and
unimpaired surplus in excess of $500,000,000.00 and which bank or its holding
company has a short-term commercial paper rating of at least A-2 or the
equivalent by Standard & Poor's Ratings Services, a division of McGraw-Hill,
Inc. or at least P-2 or the equivalent by Moody's Investors Services, Inc.;
(iii) reverse repurchase agreements with terms of not more than seven days from
the date acquired, for securities of the type described in (i) above and entered
into only with commercial banks having the qualifications described in (ii)
above; (iv) commercial paper or finance company paper issued by any Person
incorporated under the laws of the United States or any state thereof and rated
at least A-2 or the equivalent thereof by Standard & Poor's Ratings Services, a
division of McGraw-Hill, Inc. or at least P-2 or the equivalent thereof by
Moody's Investors Services, Inc., in each case with maturities of not more than
one year from the date acquired; and (v) investments in money market funds
registered under the Investment Company Act of 1940, which have net assets of at
least $500,000,000.00 and at least eighty-five percent (85%) of whose assets
consist of securities and other obligations of the type described in clauses (i)
through (iv) above.
"Collateral" means any collateral security hereafter pledged by any
Loan Party to secure the Obligations or any portion thereof.
"Commitment" means, as to each Lender, such Lender's obligation to make
Syndicate Loans hereunder in an amount up to, but not exceeding, the amount set
forth for such Lender on Annex I as such Lender's "Initial Commitment Amount",
as the same may be reduced from time to time pursuant to Section 2.10.
"Consolidated EBIT" means, with respect to the Borrower and its
Subsidiaries for any period of computation thereof, the sum of, without
duplication, (a) Consolidated Net Income of the Borrower and its Subsidiaries
for such period plus (b) to the extent deducted in determining Consolidated Net
Income (i) Consolidated Interest Expense of the Borrower and its Subsidiaries
for such period plus (ii) all income taxes of the Borrower and its Subsidiaries
paid or accrued during such period, all in accordance with GAAP.
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any period of computation thereof, the sum of, without
duplication, (a) Consolidated EBIT for such period plus (b) to the extent
deducted in determining Consolidated Net Income (i) amortization expense of the
Borrower and its Subsidiaries for such period plus (ii) depreciation expense of
the Borrower and its Subsidiaries for such period, all in accordance with GAAP;
provided, however, that for purposes of calculating Consolidated EBITDA of the
Borrower and its Subsidiaries for any period, the Consolidated EBITDA of any
Person acquired by, or merged into or consolidated with, the Borrower or its
Subsidiaries during such period shall be included on a pro forma basis for such
period (assuming for purposes of such calculation that the consummation of such
acquisition, merger or consolidation in connection therewith occurred on the
first day of such period).
"Consolidated EBIT/Interest Ratio" means, with respect to the Borrower
and its Subsidiaries for each rolling Four-Quarter Period ending on the date of
the computation thereof, the ratio of (i) Consolidated EBIT for such
Four-Quarter Period to (ii) Consolidated Interest Expense for such Four-Quarter
Period.
"Consolidated Funded Debt" means, on the date of any computation
thereof, with respect to the Borrower and its Subsidiaries (determined on a
consolidated basis but without duplication in accordance with GAAP): (a) all
indebtedness for money borrowed of the Borrower and its Subsidiaries regardless
of maturity including all revolving and term indebtedness and all other lines of
credit; (b) all indebtedness: (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)
constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for property; (c) all Capitalized Lease Obligations under which the
Borrower and/or its Subsidiaries are obligated; (d) all reimbursement
obligations under any standby, trade or other letters of credit or acceptances
(whether or not drawings thereunder have been then presented for payment) issued
for the account of the Borrower or its Subsidiaries or under which the Borrower
and its Subsidiaries are otherwise obligated; (e) all Hedging Obligations of the
Borrower and its Subsidiaries; (f) all Indebtedness of the Borrower and its
Subsidiaries that is such by virtue of clause (b) of the definition of
Indebtedness, but only to the extent that the obligations Guaranteed are
obligations that would constitute Consolidated Funded Debt under subparagraphs
(a) through (e) above; (g) the principal portion of all obligations of the
Borrower and its Subsidiaries under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified and accounted for as an operating lease in accordance
with GAAP; and (h) all Sold Receivables Indebtedness; provided, however, that
Consolidated Funded Debt shall not include trade payables of the Borrower and
its Subsidiaries incurred in the ordinary course of business and due within
ninety days of the incurrence thereof.
"Consolidated Funded Debt/EBITDA Ratio" means, with respect to the
Borrower and its Subsidiaries at the time of the computation thereof, the ratio
of (i) the Consolidated Funded Debt of the Borrower and its Subsidiaries
outstanding at such time to (ii) Consolidated EBITDA for the Four-Quarter Period
ending on the date of the computation thereof.
"Consolidated Interest Expense" means, with respect to the Borrower for
any period, the sum of (without duplication): (i) the consolidated interest
expense of the Borrower and its Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings or any Permitted
Receivables Facility, and net payments (if any) pursuant to Hedging Obligations)
and (ii) the consolidated interest expense of the Borrower and its Subsidiaries
that was capitalized during such period, and (iii) any interest expense on
Indebtedness of another Person that is Guaranteed by the Borrower or one of its
Subsidiaries or secured by a Lien on assets of the Borrower or one of its
Subsidiaries (whether or not such Guarantee or Lien is called upon), in each
case, on a consolidated basis and in accordance with GAAP.
"Consolidated Net Income" means, with respect to the Borrower and its
Subsidiaries for any period of computation thereof, the net income (or loss) of
the Borrower and its Subsidiaries on a consolidated basis for such period (taken
as a single accounting period) determined in conformity with GAAP; provided,
however, that the following shall be excluded when determining Consolidated Net
Income: (i) any after-tax item of gain or loss resulting from sale, conversion,
exchange or other disposition of assets other than in the ordinary course of
business (including abandonment of reserves relating thereto); (ii) any
after-tax gains or losses on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower and its
Subsidiaries; (iii) the undistributed earnings of any Subsidiary of the Borrower
to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
its charter or any agreement, instrument, judgment, decree, order, statute,
rule, or governmental regulation applicable to such Subsidiary; (iv) the
cumulative effect of any change in accounting principles; (v) any net gain or
loss from any discontinued operations or the disposition thereof; (vi) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of income accrued during such period;
(vii) net gains or losses on the collection of proceeds of life insurance
policies; (viii) any write-up of any asset; and (ix) any other net gains or
losses of an extraordinary nature as determined in accordance with GAAP;
provided, further, that any cash payments made with respect to losses which are
excluded from Consolidated Net Income by virtue of the foregoing proviso shall
be deducted from Consolidated Net Income for purposes of calculating the same.
"Consolidated 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 (determined on a consolidated basis and excluding intercompany items and
excluding any upward adjustments after the Agreement Date due to revaluation of
assets).
"Continue", "Continuation" and "Continued" shall refer to the
continuation of a LIBOR Loan from one Interest Period to the next Interest
Period pursuant to Section 2.6.
"Convert", "Conversion" and "Converted" shall refer to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.6.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan; and (b) the Conversion or Continuation of a Loan.
"Credit Percentage" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Credit Percentage" of each Lender shall be the Credit Percentage of
such Lender in effect immediately prior to such termination or reduction.
"Default" means any of the events specified in Section 9.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, a determination of materiality or the happening of any other condition.
"Defaulting Lender" has the meaning set forth in Section 2.3.(c).
"Documentation Agent" means SunTrust Bank, Atlanta and its successors
and assigns.
"Dollars" or "$" means the lawful currency of the United States of
America.
"Effective Date" means the later of: (a) the Agreement Date; and (b)
the date on which all of the conditions precedent set forth in Section 4.1.
shall have been fulfilled or waived in writing by the Requisite Lenders.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender;
and (iii) any other Person approved by the Administrative Agent and the
Borrower; provided, however, that (a) the approval of the Borrower shall not be
unreasonably withheld or delayed and such approval shall be deemed given by the
Borrower if no objection is received by the assigning Lender and the
Administrative Agent from the Borrower within two (2) Business Days after notice
of such proposed assignment has been provided by the assigning Lender to the
Borrower; (b) the approval of the Administrative Agent and the Borrower shall
not be required if an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 11.5.; and (c)
neither the Borrower nor an affiliate of the Borrower shall qualify as an
Eligible Assignee.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
ss. 7401 et seq; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et
seq.; Solid Waste Disposal Act, 42 U.S.C. ss. 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time, or any successor law.
"ERISA Affiliate" means any entity required at any relevant time to be
aggregated with the Borrower or any Subsidiary under Sections 414(b) or (c) of
the Internal Revenue Code. In addition, for purposes of any provision of this
Agreement that relates to Section 412(n) of the Internal Revenue Code, the term
ERISA Affiliate shall mean any entity aggregated with the Borrower or any
Subsidiary under Sections 414(b), (c), (m) or (o) of the Internal Revenue Code.
"Event of Default" means any of the events specified in Section 9.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Existing Consolidated Funded Debt" means the Consolidated Funded Debt
of the Borrower and its Subsidiaries outstanding as of the Agreement Date and
set forth on Schedule 1.1(a) attached hereto.
"Existing Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of March 16, 1998, as amended from time to time, among
the Borrower, the Lenders from time to time a party thereto, Bank of America,
N.A. (f/k/a NationsBank, N.A.), as Issuing Bank and Administrative Agent,
SunTrust Bank, Atlanta, as Documentation Agent and Wachovia Bank, N.A., as
Managing Agent; provided, however, that, if for any reason the Existing Credit
Agreement shall have been terminated or otherwise cease to be exist, the term
"Existing Credit Agreement" shall mean such Credit Agreement as in effect
immediately prior to such termination or cessation.
"Existing Liens" means Liens on the property and assets of the Borrower
and its Subsidiaries in existence as of the Agreement Date and described on
Schedule 1.1(b) hereof.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" has the meaning set forth in Section 3.16.
"Fees" means the fees and commissions provided for or referred to in
Sections 3.14., 3.15. and 3.16. and any other fees payable by the Borrower
hereunder or under any other Loan Document.
"Foreign Lender" means any Lender organized under the laws of a
jurisdiction other than the United States of America or any state thereof.
"Four-Quarter Period" means a period of four full consecutive fiscal
quarters of the Borrower, taken together as one accounting period and, unless
set forth herein to the contrary, shall mean the previous four fiscal quarters
of the Borrower and ending on the day of any computation of any ratio contained
herein.
"GAAP" means generally accepted accounting principles as set forth in
statements from Auditing Standards No. 69 entitled "The Meaning of 'Present
Fairly in Conformance with Generally Accepted Accounting Principles in the
Independent Auditors Reports'" issued by the Auditing Standards Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board that are applicable
to the circumstances. Unless otherwise agreed, references to GAAP herein shall
be to GAAP as in effect on the Agreement Date.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable agency or authority)
or any arbitrator with authority to bind a party at law.
"Guarantor" means, as of the Agreement Date, Shaw Contract Flooring
Services, Inc., and after the Agreement Date, each other Material Subsidiary
required to execute and deliver a Guaranty pursuant to Section 6.9.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any
Indebtedness means and includes:
(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 any Indebtedness; or
(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 Indebtedness 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 Indebtedness 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
Indebtedness, or to assure the owner of such Indebtedness against loss;
(iii) the supplying of funds to or in any other manner
investing in the obligor with respect to such Indebtedness;
(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 Indebtedness under a
Guaranty of any obligation or indemnifying or holding harmless, in any
way, such Person against any part or all of such Indebtedness.
As the context requires, "Guaranty" shall also mean each guaranty executed and
delivered by each Material Subsidiary pursuant to Section 6.9.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP" toxicity; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedging Obligations" means obligations of the Borrower and its
Subsidiaries under any interest rate swap agreement, interest rate cap or collar
agreement, hedging arrangement or other similar arrangement or agreement
designed to protect against fluctuations in interest rates or currency exchange
rates.
"Indebtedness" as applied to a Person means, without duplication, (a)
Consolidated Funded Debt and all other items 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 Indebtedness is to be
determined including, without limitation, all Capitalized Lease Obligations of
such Person and all reimbursement obligations of such Person under letters of
credit and acceptances issued for its account, and (b) any Guaranty of any
obligation described in subparagraph (a) above executed by such Person or under
which such Person is obligated.
"Interest Period" means, for each LIBOR Loan, the period commencing on
the date of the Borrowing, Conversion or Continuation of such LIBOR Loan and
ending on the last day of the period selected by the Borrower pursuant to this
definition. The duration of each Interest Period for a LIBOR Loan shall be one,
two, three or six months, in each case as the Borrower may, in an appropriate
Notice of Syndicate Borrowing, Notice of Continuation or Notice of Conversion,
select. In no event shall an Interest Period for a LIBOR Loan extend beyond the
Termination Date. Whenever the last day of any Interest Period for a LIBOR Loan
would otherwise occur on a day other than a LIBOR Business Day, the last day of
such Interest Period for such LIBOR Loan shall be extended to occur on the next
succeeding LIBOR Business Day; provided, however, that if such extension would
cause the last day of such Interest Period for such LIBOR Loan to occur in the
next following calendar month, the last day of such Interest Period for such
LIBOR Loan shall occur on the next preceding LIBOR Business Day.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended or any successor federal tax code.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person:
(a) the purchase or other acquisition of any share of capital stock,
evidence of Indebtedness or other security issued by any other Person;
(b) the purchase or acquisition of the assets of another Person;
(c) any loan, advance or extension of credit to, or contribution (in
the form of money or goods) to the capital of, any other Person;
(d) any Guaranty of the Indebtedness of any other Person;
(e) any other investment in any other Person (including the entering of
any joint venture or partnership (whether as a general or limited partner)); and
(f) any commitment or option to make an Investment in any other Person.
"Lender" means each of the financial institutions from time to time
identified as Lenders on the then current Annex I attached hereto, together with
its respective successors and permitted assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
"Lending Office" of such Lender (or affiliate of such Lender) designated for
such Type of Loan on the signature pages hereof or such other office of such
Lender (or an affiliate of such Lender) as such Lender may from time to time
specify to the Administrative Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two LIBOR Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two LIBOR Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
to the nearest 1/100 of 1%).
"LIBOR Business Day" means any day on which banks are scheduled to be
open for business and quoting interest rates for Dollar deposits on the London
interbank market and which is also a Business Day.
"LIBOR Loans" means Loans that bear interest at rates based upon the
Adjusted LIBO Rate.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other 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; and (c) the filing of, or any agreement to give, any
financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction.
"Loan Document" means this Agreement, each of the Notes, each of the
Guaranties and each other document or instrument now or hereafter executed and
delivered by a Loan Party in connection with or pursuant to this Agreement or
the Revolving Credit Facility.
"Loan Party" means each of the Borrower, each Guarantor, each other
Person who guarantees all or a portion of the Obligations and/or who pledges any
Collateral.
"Loans" means, collectively, the Syndicate Loans; and "Loan" means any
Syndicate Loan.
"Material Adverse Change" means, with respect to any Person, a material
adverse change in such Person's business, assets, liabilities, financial
condition, results of operations or business prospects.
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect upon (a) such Person's business, assets, liabilities, financial
condition, results of operations or business prospects; (b) the rights and
remedies of the Lenders and the Administrative Agent under the Loan Documents,
or the ability of the Borrower or any Subsidiary to perform its obligations
under the Loan Documents to which it is a party, as applicable; or (c) the
legality, validity or enforceability of any Loan Documents. Unless otherwise set
forth herein, any reference to a "Material Adverse Effect" shall be a reference
to the effect on the Borrower and its Subsidiaries, taken as a whole.
"Material Subsidiary" means a Subsidiary other than a Receivables
Subsidiary that, as of the date of any determination thereof, owns assets having
a book value equal to or greater than 10% of the book value of the consolidated
assets of the Borrower and its Subsidiaries.
"Material Subsidiary Group" shall mean any group of Subsidiaries
(excluding (a) any Receivables Subsidiary and (b) any Material Subsidiary that
has executed and delivered a Guaranty pursuant to Section 6.9.) of which, if
combined, would own assets having a book value equal to or greater than 20% of
the book value of the consolidated assets of the Borrower and its Subsidiaries
(excluding any Receivables Subsidiary).
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
Section 4001(a)(3) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Notes" means, collectively, the Syndicate Notes; and "Note" means each
Syndicate Note.
"Notice of Continuation" means a notice in the form of Exhibit B to be
delivered to the Administrative Agent pursuant to Section 2.6. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit C to be
delivered to the Administrative Agent pursuant to Section 2.6. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"Notice of Syndicate Borrowing" means a notice in the form of Exhibit A
to be delivered to the Administrative Agent pursuant to Section 2.2. evidencing
the Borrower's request for a Borrowing of Syndicate Loans.
"Obligations" means, individually and collectively: (a) all Loans and
the obligation of the Borrower to repay the same and the accrued interest
thereon in accordance with this Agreement; and (b) all other present and future
indebtedness, liabilities, obligations, covenants and duties of the Borrower and
the other Loan Parties owing to the Administrative Agent and/or the Lenders of
every kind, nature and description, under or in respect of this Agreement or any
of the other Loan Documents including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"Outstanding Credit" means, at any given time, the aggregate principal
amount of Loans outstanding at such time.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(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 which
are not required to be paid or discharged under Section 6.6.; (b) Liens
consisting of deposits or pledges made, in the ordinary course of business, in
connection with, or to secure payment of, obligations under workmen's
compensation, unemployment insurance or similar Applicable Laws; (c) Liens
consisting of 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 such Person; (d) Existing Liens not required to be terminated
pursuant to Section 4.1.; (e) Purchase Money Liens and Liens constituting
Capital Lease Obligations but only to the extent the Indebtedness secured by
such Liens is permitted pursuant to Section 8.2.(d); (f) Liens securing any
Hedging Obligations owing to a Lender; (g) Liens on accounts receivable (and
related general intangibles) to reflect sales of such receivables (and related
general intangibles) to and by the Receivables Subsidiary pursuant to a
Permitted Receivables Facility; and (h) Liens on assets of the Receivables
Subsidiary in connection with the Permitted Receivables Facility.
"Permitted Receivables Facility" means, with respect to the Borrower
and its Subsidiaries, any receivables securitization program implemented by the
Securitization Agreements, pursuant to which the Borrower and/or its
Subsidiaries receives proceeds arising out of a pledge, financing, sale or other
encumbrance of its accounts receivable.
"Person" means an individual, corporation, partnership (general,
limited or limited liability), limited liability company, association, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof.
"Plan" means an employee benefit or pension plan maintained for
employees of the Borrower, any of the other Loan Parties or any Affiliate
thereof that is covered by Title IV of ERISA, or subject to minimum funding
standards under Section 412 of the Internal Revenue Code, including such plans
as may be established after the Agreement Date.
"Prime Rate" means the per annum rate of interest established from time
to time by Bank of America as its prime rate, which rate may not be the lowest
rate of interest charged by Bank of America to its customers.
"Principal Office" means the main office of the Administrative Agent
located at 101 North Tryon Street, 15th Floor, Charlotte, North Carolina
28255-0001, Attention: Agency Services, or any other office which the
Administrative Agent may designate as such in a written notice to the Borrower
and the Lenders.
"Purchase Money Lien" means a Lien on any item of equipment acquired
after the Agreement Date; provided, however, that: (a) such Lien shall attach
only to the equipment to be acquired; (b) the Indebtedness incurred in
connection with such acquisition shall not exceed the amount of the purchase
price of such item of equipment then being financed; (c) such Lien shall secure
only such Indebtedness; and (d) a description is promptly furnished to the
Administrative Agent of any property so acquired, the purchase price of which is
greater than $5,000,000.
"Quarterly Dates" means the last Business Day of March, June, September
and December of each year.
"Receivables Subsidiary" means a direct or indirect wholly-owned
Subsidiary of the Borrower created solely for the purpose of, and which engages
in no activities other than activities in connection with or incidental to, the
purchasing, financing and/or sale of the accounts receivable of the Borrower
and/or its Subsidiaries pursuant to a Permitted Receivables Facility, so long as
(unless the Administrative Agent shall (in its reasonable discretion) otherwise
agree in writing) it: (a) has no Indebtedness other than non-recourse
Indebtedness; (b) is not party to any agreement, contract, arrangement or
understanding with the Borrower or any other Subsidiary of the Borrower unless
the terms of any such agreement, contract, arrangement or understanding are no
less favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Borrower; (c) is
a Person with respect to which neither the Borrower nor any of its other
Subsidiaries has any direct obligation to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (d) has not Guaranteed or otherwise directly provided
credit support for any Indebtedness of the Borrower or any of its other
Subsidiaries.
"Reportable Event" has the meaning set forth in Section 4043(b) of
ERISA, but shall not include a Reportable Event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations.
"Requisite Lenders" means (a) so long as no Event of Default has
occurred and is continuing, Lenders whose combined Credit Percentages equal or
exceed 51% and (b) during the continuance of an Event of Default, Lenders who,
on a combined basis, hold at least 51% of the Outstanding Credit.
"Reserve Requirement" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against "Eurocurrency
liabilities" (as such term is used in Regulation D of the Board of Governors of
the Federal Reserve System). Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (i) any category of liabilities which
includes deposits by reference to which the Adjusted LIBO Rate is to be
determined, or (ii) any category of extensions of credit or other assets which
include LIBOR Loans. The Adjusted LIBO Rate shall be adjusted automatically on
and as of the effective date of any change in the Reserve Requirement.
"Revolving Commitment" means $200,000,000, as the same may be reduced
from time to time pursuant to the terms of this Agreement.
"Revolving Credit Facility" means the revolving credit facility
described in Article 2.
"Securitization Agreements" shall mean (a) that certain Receivables
Purchase Agreement dated as of September 3, 1998, by and between the Borrower,
as seller, and Shaw Funding Company, a Delaware corporation and a wholly owned
Subsidiary of the Borrower, as purchaser, and (b) that certain Transfer and
Administration Agreement dated as of September 3, 1998, by and among Shaw
Funding Company, as transferor, the Borrower, individually and as collection
agent, Enterprise Funding Corporation, as purchaser, and Bank of America, N.A.
(f/k/a NationsBank, N.A.), as agent, and the financial institutions from time to
time party thereto as "Bank Investors" thereunder; as such agreements may be
respectively amended, supplemented, extended, renewed or restated from time to
time, provided that the maximum size of the receivables securitization facility
established thereunder shall not exceed the amount referred to in Section 8.2(i)
hereof. "Securitization Agreements" shall also mean and include (i) any
additional agreements from time to time implementing another trade receivables
securitization transaction, and (ii) any agreement(s) that replace either or
both of the agreements referred to in clauses (a) or (b) above, but only, in
each case, if the Administrative Agent shall have consented (such consent not to
be unreasonably withheld) in writing to any such additional or replacement
agreement.
"Sold Receivables Indebtedness" means, as of any date of determination,
the aggregate outstanding amount of indebtedness evidenced by certificates of
participation or other interests in the accounts receivable of the Borrower
and/or its Subsidiaries which participations or interests are sold or issued to
third Persons in connection with a Permitted Receivables Facility.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any Affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
"Subsidiary" means (i) a Person of which an aggregate of 50% or more of
the issued and outstanding capital stock of any class or classes having by the
terms thereof ordinary voting power to elect the directors (or other management
personnel) of such Person or 50% or more of other voting or equity interests is
owned of record, directly or beneficially, by another Person, or by one or more
Subsidiaries of such other Person, or by such other Person and one or more
Subsidiaries of such Person and (ii) any other Person whose financial statements
are required to be consolidated with the Borrower in accordance with GAAP.
"Syndicate Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.
"Syndicate Note" has the meaning set forth in Section 3.7.
"Termination Date" means November 2, 2000.
"Termination Event" means (a) a Reportable Event; (b) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA; (c) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or the appointment of
a trustee to administer any Plan; (d) the withdrawal of the Borrower, any
Subsidiary or any ERISA Related Party from a Plan during a plan year in which
such employer was a "substantial employer" as defined in ERISA Section
4001(a)(2); (e) the partial or complete withdrawal from a Multiemployer Plan
within the meaning of ERISA Section 4203 and 4205; or (f) an event that could
result in the Borrower, its Subsidiaries or any ERISA Related Party providing
security as required by Internal Revenue Code Section 401(a)(29).
"Total Assets" means, at any time of determination, the total
consolidated assets of the Borrower and its Subsidiaries, as shown on the
consolidated balance sheet of the Borrower most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 7.1 or 7.2, as
applicable.
"Transaction Costs" shall mean, with respect to a given transaction,
all reasonable brokerage and investment banking fees, fees and expenses of
appraisers and accountants, fees and disbursements of legal counsel and other
reasonable out-of-pocket costs and expenses incurred by Borrower or a Subsidiary
(or required to be paid by Borrower or a Subsidiary) in connection with such
transaction.
"Type" with respect to any Syndicate Loan, refers to whether such Loan
is a LIBOR Loan or Base Rate Loan.
Section 1.2. General.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. references in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
and (c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified or supplemented from time to time and
in effect at any given time. 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. Unless explicitly set forth
to the contrary, a reference to "Subsidiary" means a Subsidiary of the Borrower
or a Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Unless otherwise indicated, all
references to time are references to Eastern Standard Time or Eastern Daylight
Savings Time, as the case may be.
ARTICLE 2. SYNDICATE LOAN CREDIT FACILITY
Section 2.1. Syndicate Loans.
Subject to Section 3.1. and the other terms and conditions hereof, and
in reliance upon the representations and warranties of the Borrower set forth
herein, during the period from the Effective Date to but excluding the
Termination Date, each Lender severally and not jointly agrees to make Syndicate
Loans to the Borrower in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the Revolving Commitment times such
Lender's Credit Percentage. Subject to the terms and conditions of this
Agreement, during the period from the Effective Date to the Termination Date,
the Borrower may borrow, repay and reborrow Loans hereunder.
Section 2.2. Borrowings of Syndicate Loans.
Each Borrowing of Syndicate Loans shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount. The Borrower shall give the Administrative Agent written notice pursuant
to a Notice of Syndicate Borrowing or telephonic notice of each Borrowing of a
Syndicate Loan. Any such telephonic notice shall include all information to be
specified in a written Notice of Syndicate Borrowing and shall be promptly
confirmed in writing by the Borrower pursuant to a Notice of Syndicate Borrowing
sent to the Administrative Agent by facsimile transmission on the same day of
such telephonic notice. The Administrative Agent will promptly transmit by
facsimile transmission the Notice of Syndicate Borrowing (or the information
contained in such Notice of Syndicate Borrowing) to each Lender. The Notice of
Syndicate Borrowing shall specify the aggregate principal amount of Syndicate
Loans to be borrowed from the Lenders pursuant to the Notice of Syndicate
Borrowing, the Type of Loans, and the proposed date such Syndicate Loans are to
be borrowed. Each Notice of Syndicate Borrowing shall be delivered to the
Administrative Agent before 11:00 a.m. (a) in the case of LIBOR Loans, on the
date three LIBOR Business Days prior to the proposed date of such Borrowing and
(b) in the case of Base Rate Loans, on the date of the proposed Borrowing. Each
Notice of Syndicate Borrowing or telephonic notice of each such Borrowing shall
be irrevocable once given and binding on the Borrower.
Section 2.3. Disbursements of Syndicate Loans.
(a) No later than 12:00 noon on the date specified in the Notice of
Syndicate Borrowing, each Lender will make available for the account of its
applicable Lending Office to the Administrative Agent at its Principal Office,
in immediately available funds, the Syndicate Loan to be made by such Lender
using the wiring instructions for the Administrative Agent set forth on Annex I
or as otherwise directed by the Administrative Agent. With respect to Syndicate
Loans to be made after the Effective Date, unless the Administrative Agent shall
have been notified by any Lender prior to the specified date of Borrowing of a
Syndicate Loan that such Lender does not intend to make available to the
Administrative Agent the Syndicate Loan to be made by such Lender on such date,
the Administrative Agent may assume that such Lender will make the proceeds of
such Syndicate Loan available to the Administrative Agent on the date of the
requested Borrowing as set forth in the Notice of Syndicate Borrowing and the
Administrative Agent may, in reliance upon such assumption (but shall not be
obligated to), make available to the Borrower the amount of such Syndicate Loan
to be provided by such Lender.
(b) Provided that the applicable conditions set forth in Article 4. for
such Borrowing of Syndicate Loans are fulfilled, the Administrative Agent will
make the proceeds of such Borrowing of Syndicate Loans available to the Borrower
at the account specified by the Borrower in such Notice of Syndicate Borrowing.
(c) If, with respect to Syndicate Loans to be made after the Effective
Date: (i) a Lender (such Lender being hereinafter referred to as a "Defaulting
Lender") does not make the amount of such Lender's Syndicate Loan available to
the Administrative Agent; (ii) such Lender has not notified the Administrative
Agent that it will not make such amount available to the Administrative Agent;
and (iii) the Administrative Agent has nevertheless made available to the
Borrower the amount of the Syndicate Loan to be provided by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Defaulting Lender. If such Defaulting Lender does not pay such
corresponding amount immediately upon the Administrative Agent's demand, the
Administrative Agent shall promptly notify the Borrower and the Borrower shall
promptly (but in no event later than one Business Day after such demand) pay
such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from such Defaulting Lender interest on such
corresponding amount for each day from the date such amount was made available
by the Administrative Agent to the Borrower to the date such amount is recovered
by the Administrative Agent at a rate per annum equal to the applicable Federal
Funds Rate. The Administrative Agent shall be entitled to recover from the
Borrower the amount of interest accruing on such amount of such Syndicate Loan
at the rate therefor in accordance with its Type; provided, however, any amount
paid by the Defaulting Lender pursuant to the immediately preceding sentence
shall reduce the amounts owed by the Borrower under this sentence. The
Administrative Agent shall also be entitled to recover from the Borrower and
such Defaulting Lender an amount equal to any costs (including reasonable legal
expenses) and losses incurred as a result of the failure of such Defaulting
Lender to provide such amount as provided in this Agreement. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice any rights which the Borrower may have
against any Defaulting Lender, including, without limitation, the right of the
Borrower to seek reimbursement from any Defaulting Lender for any amounts paid
by the Borrower under this Section because of such Defaulting Lender's default.
If the Borrower and the Defaulting Lender fail to reimburse the Administrative
Agent as provided above, in addition to the rights the Administrative Agent may
have under Applicable Law or under this Agreement, the Administrative Agent
shall be subrogated to the rights of such Defaulting Lender under this Agreement
to the extent of such failure and shall thereafter (until such Defaulting Lender
shall so reimburse the Administrative Agent) be entitled to the percentage of
voting rights of such Defaulting Lender under this Agreement.
Section 2.4. Repayment of Syndicate Loans.
Unless payable earlier pursuant to the terms of this Agreement, the
Borrower shall repay the outstanding principal balance of all Syndicate Loans,
and all accrued but unpaid interest and fees thereon, on the Termination Date.
Section 2.5. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender hereunder and the failure of any
Lender to make a Loan to be made by it hereunder shall not relieve the
obligation of each other Lender to make any Loan to be made by such other
Lender.
Section 2.6. Continuation and Conversion of Syndicate Loans.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, the Borrower may on any LIBOR Business Day, with respect to any
LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR
Loan by selecting a new Interest Period for such LIBOR Loan. Each new Interest
Period selected under this Section for a Syndicate Loan shall commence on the
last day of the immediately preceding Interest Period for such Syndicate Loan.
Each selection of a new Interest Period shall be made by the Borrower's giving
of a Notice of Continuation not later than 12:00 noon on the third LIBOR
Business Day prior to the date of any such Continuation to the Administrative
Agent. Promptly after receipt of a Notice of Continuation, the Administrative
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Continuation. Such notice by the Borrower of a
Continuation shall be by telephone or telecopy, confirmed immediately in writing
if by telephone, in the form of a Notice of Continuation, specifying (a) the
date of such Continuation, (b) the LIBOR Loan and portion thereof subject to
such Continuation and (c) the duration of the selected Interest Period, all of
which shall be specified in such manner as is necessary to comply with all
limitations on Syndicate Loans outstanding hereunder. Upon receipt of a Notice
of Continuation, the Administrative Agent shall determine the Adjusted LIBO Rate
and promptly notify the Borrower and the Lenders by telephone (promptly
confirmed in writing by telecopier) or in writing by telecopier. Each Notice of
Continuation shall be irrevocable by and binding on the Borrower once given. If
the Borrower shall fail to select in a timely manner a new Interest Period for
any LIBOR Loan in accordance with this Section, such Loan will automatically, on
the last day of the current Interest Period therefore, Convert into a Base Rate
Loan notwithstanding failure of the Borrower to comply with Section 2.2.
(b) So long as no Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Administrative Agent, Convert the entire amount of
all or a portion of a Loan of one Type into a Loan of another Type. Promptly
after receipt of a Notice of Conversion, the Administrative Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission of the
proposed Conversion. Any Conversion of a LIBOR Loan into a Base Rate Loan shall
be made on, and only on, the last day of an Interest Period for such LIBOR Loan.
Each such Notice of Conversion shall be given not later than 12:00 noon on the
Business Day prior to the date of any proposed Conversion into Base Rate Loans
and on the third LIBOR Business Day prior to the date of any proposed Conversion
into LIBOR Loans. Subject to the restrictions specified above, each such notice
by the Borrower of a Conversion shall be by telephone or telecopy, confirmed
immediately in writing if by telephone, in the form of a Notice of Continuation
specifying (a) the requested date of such Conversion, (b) the Type of Loan to be
Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of
Loan such Loan is to be Converted into and (e) if such Conversion is into a
LIBOR Loan, the requested duration of the Interest Period of such Loan. Each
Notice of Conversion shall be irrevocable by and binding on the Borrower once
given. Each Conversion from a Base Rate Loan to a LIBOR Loan shall be in an
aggregate amount for the Loans of all Lenders of not less than $5,000,000 or
integral multiples of $1,000,000 in excess of that amount. Upon receipt of a
Notice of Conversion, the Administrative Agent shall determine the Adjusted LIBO
Rate or the Base Rate, as the case may be, and promptly notify the Borrower and
the Lenders by telephone (promptly confirmed in writing by telecopier) or in
writing by telecopier.
Section 2.7. Unavailability of Certain Loans; Illegality.
(a) If on or prior to the first day of any Interest Period for any
LIBOR Loan:
(i) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the
London interbank or other relevant market, adequate and reasonable
means do not exist for ascertaining LIBOR for such Interest Period; or
(ii) the Requisite Lenders determine (which determination
shall be conclusive) and notify the Administrative Agent that the
Adjusted LIBO Rate will not adequately and fairly reflect the cost to
the Lenders of funding LIBOR Loans for such Interest Period,
then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional LIBOR Loans, Continue LIBOR Loans, or to Convert
Base Rate Loans into LIBOR Loans and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding LIBOR Loans, either
prepay such LIBOR Loans or Convert such Loans into Base Rate Loans in accordance
with the terms of this Agreement.
(b) Notwithstanding any other provision of this Agreement, in the event
that it becomes unlawful for any Lender or its Lending Office to make, maintain,
or fund LIBOR Loans hereunder, then such Lender shall promptly notify the
Borrower and the Administrative Agent thereof and such Lender's obligation to
make or Continue LIBOR Loans and to Convert Base Rate Loans into LIBOR Loans
shall be suspended until such time as such Lender may again make, maintain, and
fund LIBOR Loans (in which case the provisions of Section 2.8. shall be
applicable).
Section 2.8. Treatment of Affected Loans.
If the obligation of any Lender to make or Continue a LIBOR Loan, or to
Convert Base Rate Loans into LIBOR Loans shall be suspended pursuant to Section
2.6., 2.7. or 3.17. (such Loans being herein called "Affected Loans"), such
Lender's Affected Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Affected Loans (or,
in the case of a Conversion required by Section 2.7., on such earlier date as
such Lender may specify to the Borrower with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 2.7. or 3.17. that gave rise to such
Conversion no longer exist (or in the case of Section 2.6., the applicable
Default or Event of Default has been cured or waived pursuant to the terms
hereof):
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its Base
Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and all
Loans of such Lender that would otherwise be Converted into LIBOR Loans shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in Section 2.7. or 3.17.
hereof that gave rise to the Conversion of such Lender's Affected Loans pursuant
to this Section 2.8. no longer exist (which such Lender agrees to do promptly
upon such circumstances ceasing to exist) (or in the case of Section 2.6., the
applicable Default or Event of Default has been cured or waived pursuant to the
terms hereof) at a time when LIBOR Loans made by other Lenders are outstanding,
such Lender's Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as
to principal amounts, Types, and Interest Periods) in accordance with their
respective Commitments.
Section 2.9. Compensation.
Upon the request of any Lender, the Borrower shall pay to such Lender,
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense (including loss of
anticipated profits) incurred by such Lender as a result of:
(a) any payment, mandatory or optional prepayment or Conversion of a
LIBOR Loan for any reason (including, without limitation, acceleration) on a
date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Article 4. to be satisfied) to borrow, Continue, Convert or prepay a LIBOR
Loan on the date for such borrowing, Continuation, Conversion or prepayment
under this Agreement.
Such compensation shall include, without limitation, an amount equal to
the excess, if any, of (i) the amount of interest that otherwise would have
accrued on the principal amount so paid, prepaid or Converted or not borrowed
for the period from the date of such payment, prepayment, Conversion or failure
to borrow to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein plus such Lender's normal
administrative charges, if any, associated with such payment, prepayment,
Conversion or failure to borrow over (ii) the amount of interest that otherwise
would have accrued on such principal amount at a rate per annum equal to the
interest component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
reasonably determined by such Lender). Any determination of the amount of such
loss, cost or expense shall be conclusive absent manifest error.
Section 2.10. Voluntary Reductions of the Revolving Commitment.
The Borrower shall have the right to terminate or reduce the amount of
the Revolving Commitment at any time and from time to time without penalty or
premium upon not less than five Business Days prior written notice to the
Administrative Agent of each such termination or reduction, which notice shall
specify the effective date thereof and the amount of any such reduction (which
in the case of any partial reduction of the Revolving Commitment shall not be
less than $10,000,000 and integral multiples of $5,000,000 in excess of that
amount) and shall be irrevocable once given and effective only upon receipt by
the Administrative Agent. The Administrative Agent will promptly transmit such
notice to each Lender. The Revolving Commitment, once reduced pursuant to this
Section, shall not be increased. The Borrower shall pay all interest and Fees on
the Loans accrued to the date of such reduction or termination of the Revolving
Commitment to the Administrative Agent for the account of the Lenders.
ARTICLE 3. OTHER LOAN AND PAYMENT PROVISIONS
Section 3.1. Maximum Amount of Obligations.
In no event shall the Outstanding Credit at any time exceed the
Revolving Commitment in effect at such time. Further, the Borrower shall not
request any Borrowing which would result in a violation of this Section.
Section 3.2. Mandatory Prepayment of Loans.
If at any time the Outstanding Credit exceeds the Revolving Commitment
in effect at such time, the Borrower shall immediately pay to the Administrative
Agent for the respective accounts of the Lenders the amount of such excess;
provided, however, that any payments to be applied shall first be applied to
Base Rate Loans and then to LIBOR Loans in direct order of Interest Period
maturities. If the Borrower is required to pay any outstanding LIBOR Loans by
reason of this Section prior to the end of the applicable Interest Period
therefor, the Borrower shall indemnify each Lender against the losses, costs and
expenses described in Section 2.9. incurred by such Lender.
Section 3.3. Voluntary Prepayment of Loans.
The Borrower may voluntarily prepay any Loan at any time; provided,
however, that: (i) any prepayment shall be in an aggregate principal amount of
$5,000,000 and in integral multiples of $1,000,000 in excess of that amount and
(ii) in the event the Borrower prepays any LIBOR Loan prior to the end of the
applicable Interest Period therefor, the Borrower shall pay the applicable
Lender(s) any amounts due under Section 2.9. Subject to the foregoing, the
Borrower may prepay any Base Rate Loan at any time without penalty or premium.
Section 3.4. Maximum Number of Interest Periods for Loans.
There may be no more than four different Interest Periods for LIBOR
Loans outstanding at the same time. There may be no more than an aggregate of
eight separate Interest Periods for all Loans outstanding at the same time.
Section 3.5. Rates and Payment of Interest on Loans.
(a) Interest on LIBOR Loans. Subject to the provisions of Section 3.6.,
interest on each LIBOR Loan shall accrue at an interest rate per annum during
the Interest Period for such Loan equal to the Adjusted LIBO Rate for the
Interest Period in effect for such LIBOR Loan plus the Applicable Margin. All
such accrued interest shall be payable (i) on the last day of each Interest
Period with respect thereto and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, (ii) on the date of Conversion of such LIBOR Loan (or a portion thereof)
to another Type of Loan, (iii) upon any prepayment of such LIBOR Loan (but only
on the principal amount so prepaid) and (iv) at maturity of such Loan (and after
maturity of such Loan (whether by acceleration or otherwise) upon demand). The
Administrative Agent upon determining the Adjusted LIBO Rate and the interest
rate applicable to the Syndicate Loans hereunder for any Interest Period shall
promptly notify the Borrower and the Lenders by telephone or in writing thereof
via facsimile transmission. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding on the Lenders and the
Borrower for all purposes, absent manifest error.
(b) Interest on Base Rate Loans. Subject to the provisions of Section
3.6., interest on each Base Rate Loan shall accrue at an interest rate per annum
equal to the Base Rate then in effect plus the Applicable Margin. All such
accrued interest shall be payable (i) monthly on the last day of each month,
(ii) upon any prepayment of such Base Rate Loan (but only on the principal
amount so prepaid) and (iii) at maturity of such Base Rate Loan (and after
maturity (whether by acceleration or otherwise) upon demand).
Section 3.6. Interest Upon Event of Default.
If an Event of Default has occurred and is continuing, all Loans and
all other Obligations shall bear interest until paid in full at a rate per annum
that is two percent (2.0%) in excess of the Base Rate. If this Agreement or the
other Loan Documents do not specify an interest rate for a particular
Obligation, such Obligation shall, for purposes of this Section 3.6., be deemed
to be a Base Rate Loan.
Section 3.7. Notes.
The obligation of the Borrower to repay the principal of and accrued
interest on the Syndicate Loans shall be evidenced by promissory notes (each a
"Syndicate Note") in substantially the form of Exhibit D. Each Syndicate Note
delivered to a Lender shall be dated the Agreement Date, payable to the order of
such Lender and shall be in a face amount equal to such Lender's Credit
Percentage of the Revolving Commitment as originally in effect.
Section 3.8. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan and any Fees due hereunder shall be computed on the basis of a year of
360 days and the actual number of days elapsed. All Fees hereunder shall be
deemed to be fully earned when due and paid and shall not be refundable for any
reason.
Section 3.9. Usury.
In no event shall the amount of interest due or payable on the Loans
exceed the maximum rate of interest allowed by Applicable Law and, if any such
payment is paid by the Borrower or received by any Lender, then such excess sum
shall be credited as a payment of principal, unless the Borrower shall notify
the respective Lender in writing that the Borrower elects to have such excess
sum returned to it forthwith. It is the express intent of the parties hereto
that the Borrower not pay and the Lenders not receive, directly or indirectly,
in any manner whatsoever, interest in excess of that which may be lawfully paid
by the Borrower under Applicable Law.
Section 3.10. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest described in Section 3.5. The parties hereto
further agree and stipulate that all agency fees, syndication fees, facility
fees, utilization fees, participation fees, underwriting fees, default charges,
late charges, funding or "breakage" charges, increased cost charges, attorneys'
fees and reimbursement for costs and expenses paid by the Administrative Agent
or any Lender to third parties or for damages incurred by the Administrative
Agent or any Lender, are charges made to compensate the Administrative Agent or
any such Lender for underwriting or administrative services and costs or losses
performed or incurred, and to be performed or incurred, by the Administrative
Agent and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money pursuant to Official
Code of Georgia Annotated Sections 7-4-2 and 7-4-18. All charges other than
charges for the use of money shall be fully earned and nonrefundable when due.
Section 3.11. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement, the Notes or any other Loan Document shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at its Principal Office, not later than 2:00 p.m. on the
date on which such payment shall become due (each such payment made after such
time on such due date to be deemed to have been made on the next succeeding
Business Day) and shall be made in accordance with the wiring instructions set
forth for the Administrative Agent on Annex I attached hereto or as otherwise
directed by the Administrative Agent. Subject to Sections 3.12. and 3.13., the
Administrative Agent or any Lender for whose account any such payment is made,
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time from any special or general deposit account of the
Borrower with the Administrative Agent or such Lender, as the case may be (with
notice to the Borrower, the other Lenders and the Administrative Agent). The
Borrower shall, at the time of making each payment under this Agreement or any
Note, specify to the Administrative Agent the amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it fails
to so specify, or an Event of Default has occurred and is continuing, the
Administrative Agent may apply such payment to the Loans or any other obligation
of the Borrower under the Loan Documents in accordance with the direction of the
Requisite Lenders). Each payment received by the Administrative Agent for the
account of the Lenders under this Agreement or any Note shall be paid promptly
to such Lender, by wire transfer of same day funds in accordance with the wiring
instructions set forth for such Lender on the Annex I attached hereto, for the
account of such Lender at the applicable Lending Office of such Lender. In the
event the Administrative Agent fails to pay such amounts to the Lenders as
provided in the previous sentence, the Administrative Agent shall pay interest
on such amount at a rate per annum equal to the Federal Funds Rate from time to
time in effect. If the due date of any payment under this Agreement or any Note
would otherwise fall on a day which is not a Business Day such date shall be
extended to the next succeeding Business Day and interest shall be payable for
the period of such extension. The Borrower agrees that all of its payment
obligations hereunder shall be absolute, unconditional and, for the purposes of
making payments hereunder, the Borrower hereby waives any right to assert any
setoff, counterclaim or cross-claim.
Section 3.12. Pro Rata Treatment.
Unless set forth to the contrary herein, (a) each Borrowing of
Syndicate Loans, (b) each payment by the Borrower with respect to any Syndicate
Loan, (c) each other payment to be made by the Borrower or any Loan Party
hereunder or under any Loan Document in respect of the Syndicate Loans, and (d)
each voluntary reduction of the Commitments pursuant to Section 2.10., shall be
made by, or credited to the account of, the Lenders pro rata in accordance with
their respective Credit Percentages. Each payment of interest on the Syndicate
Loans made by the Borrower shall be made for the account of the Lenders pro rata
in accordance with the amounts of interest due and payable to the respective
Lenders.
Section 3.13. Sharing of Payments, Etc.
The Borrower agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender or the
Administrative Agent may otherwise have, each Lender and the Administrative
Agent shall be entitled, at its option, to offset balances held by it for the
account of the Borrower at any of such Lender's (or the Administrative Agent's)
offices, in Dollars or in any other currency, against any principal of, or
interest on, any of such Lender's Loans hereunder (or other Obligations owing to
such Lender or the Administrative Agent hereunder) which is not paid when due
(regardless of whether such balances are then due to the Borrower), in which
case such Lender or the Administrative Agent (as the case may be) shall promptly
notify the Borrower, all other Lenders and the Administrative Agent thereof;
provided, however, the failure of such Lender or the Administrative Agent (as
the case may be) to give such notice shall not affect the validity of such
offset. If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrower or a Loan Party through
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the terms
of this Agreement and such payment, pursuant to Section 3.12., should be
distributed to the Lenders pro rata in accordance with their respective Credit
Percentages, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Syndicate Loans made by the other Lenders or other Obligations
owed to such other Lenders in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all the Lenders shall share
the benefit of such payment (net of any reasonable expenses which may be
incurred by such Lender in obtaining or preserving such benefit) pro rata in
accordance with their respective Credit Percentages. To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Borrower agrees that any Lender so purchasing a participation
(or direct interest) in the Syndicate Loans or other Obligations owed to such
other Lenders made by other Lenders may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower.
Section 3.14. Facility Fee.
The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee for the period from the Effective Date through and
including the Termination Date on the amount of the Revolving Commitment from
time to time in effect and regardless of whether and to the extent the Revolving
Commitment is utilized hereunder. The facility fee shall be calculated on a
percentage per annum basis using the percentage rates set forth below
corresponding to the Consolidated Funded Debt/EBITDA Ratio in effect at such
time:
<TABLE>
<CAPTION>
<S> <C>
Consolidated Funded Debt/EBITDA Ratio Facility Fee Percentage
- --------------------------------------------------------------------------------- --------------------------
Greater than 3.50 to 1.00 0.25%
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 3.50 to 1.00 but greater than 3.00 to 1.00 0.20%
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00 0.175%
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00 0.15%
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 2.00 to 1.00 0.10%
- --------------------------------------------------------------------------------- --------------------------
</TABLE>
The facility fee shall be determined by the Administrative Agent on a quarterly
basis in accordance with the following provisions. The Consolidated Funded
Debt/EBITDA Ratio shall be determined by the Administrative Agent promptly upon
receipt of the financial statements required to be delivered by the Borrower to
the Administrative Agent and the Lenders pursuant to Section 7.1. or 7.2., as
applicable. Any adjustment to the facility fee shall be effective as of the
first day of the fiscal quarter in which the quarterly (or annual) financial
statements are required to be delivered to the Administrative Agent and the
Lenders. Notwithstanding the foregoing, for the period from the Effective Date
through and including the first Adjustment Date (as defined in the definition of
"Applicable Margin"), the facility fee shall equal .15% per annum. Thereafter,
the facility fee shall be adjusted from time to time as set forth above. The
facility fee hereunder shall be payable in arrears on (a) each Quarterly Date,
(b) the date of each reduction in the Revolving Commitment (but only on the
amount of the reduction), (c) on the Termination Date, (d) on the date the
Commitments are otherwise terminated or reduced to zero and (e) thereafter from
time to time on demand of the Administrative Agent.
Section 3.15. Utilization Fee.
For each day (commencing with the Effective Date) during which the
aggregate principal amount of Loans exceeds $100,000,000, the Borrower shall pay
to the Administrative Agent for the account of each Lender a per annum
utilization fee in an amount equal to the aggregate principal amount of Loans
outstanding on such day times .125%. The utilization fee hereunder shall be
payable in arrears on (a) each Quarterly Date, (b) on the Termination Date, (c)
on the date the Commitments are otherwise terminated or reduced to zero and (d)
thereafter from time to time on demand of the Administrative Agent.
Section 3.16. Administrative Agent and Lender Participation Fees.
The Borrower agrees to pay, on the Effective Date, the administrative
and other fees of the Administrative Agent and the Arranger as set forth in the
letter dated October 14, 1999 from the Administrative Agent and the Arranger to
the Borrower (the "Fee Letter"). The foregoing fees referred to in this Section
3.16. shall be for the account of the Administrative Agent only. Further, on the
Effective Date, the Borrower shall to pay to Administrative Agent, for the
account of each Lender, a participation fee in an amount equal to each such
Lender's Commitment times .025%.
Section 3.17. Increased Costs/Capital Adequacy.
(a) If, after the Agreement Date, the adoption of any Applicable Law or
any change in any Applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority or compliance by any Lender
(or its Lending Office) with any request or directive (whether or not having the
force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Lending Office) to any
tax, duty, or other charge with respect to any LIBOR Loans, such
Lender's Note, or the obligation of such Lender to make LIBOR Loans, or
change the basis of taxation of any amounts payable to such Lender (or
its Lending Office) under this Agreement or such Lender's Note in
respect of any LIBOR Loans (other than taxes imposed on the overall net
income of such Lender by the jurisdiction in which such Lender has its
principal office or such Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted LIBO
Rate) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such Lender (or
its Lending Office), including the Commitment of such Lender hereunder;
or
(iii) shall impose on such Lender (or its Lending Office) or
the London interbank market any other condition affecting this
Agreement or such Lender's Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making, Converting into, Continuing, or maintaining
any LIBOR Loans or to reduce any sum received or receivable by such Lender (or
its Lending Office) under this Agreement or such Lender's Note with respect to
any LIBOR Loans, then the Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such increased cost or
reduction. If any Lender requests compensation by the Borrower under this
Section 3.17., the Borrower may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender to make or Continue
LIBOR Loans or to Convert Base Rate Loans into LIBOR Loans, until the event or
condition giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.17. shall be applicable); provided that such suspension
shall not affect the right of such Lender to receive the compensation so
requested.
(b) If, after the Agreement Date, any Lender shall have determined that
the adoption of any Applicable Law regarding capital adequacy or any change
therein or in the interpretation or administration thereof by any Governmental
Authority, or any request or directive regarding capital adequacy (whether or
not having the force of law) of any such Governmental Authority, has or would
have the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
Agreement Date, which will entitle such Lender to compensation pursuant to this
Section. Any Lender claiming compensation under this Section shall furnish to
the Borrower and the Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
Section 3.18. Statements of Account.
The Administrative Agent will account to the Borrower quarterly with a
statement of Loans, accrued interest and Fees, charges and payments made
pursuant to this Agreement and the other Loan Documents, and such account
rendered by the Administrative Agent shall be deemed binding upon Borrower
unless the Borrower notifies the Administrative Agent in writing within fifteen
days after the date each statement is delivered to Borrower that the Borrower
objects to the information, calculations or items therein contained and
identifies such objections. The failure of the Administrative Agent to deliver
such a statement of accounts shall not relieve or discharge the Borrower from
its obligations hereunder.
Section 3.19. Defaulting Lender's Status.
Notwithstanding anything contained herein to the contrary, but in
addition to provisions regarding the failure of a Lender to perform its
obligations hereunder set forth elsewhere in this Agreement, so long as any
Lender shall be in default in its obligation to fund a Loan or shall have
rejected its Commitment, then such Lender shall not be entitled to receive any
payments of principal of, or interest on, its Commitment or the Loans or its
share of any commitment or other fees payable hereunder, and for purposes of
voting or consenting to matters with respect to the Loan Documents, such Lender
shall be deemed not to be a "Lender" hereunder and such Lender's Commitment
shall be deemed to be zero ($0), unless and until (a) all other Obligations have
been paid in full, (b) such failure to fulfill its obligation to fund is cured
and such Lender shall have paid, as and to the extent provided in this
Agreement, to the applicable party, such amount then owing together with
interest on the amount of funds that such Lender failed to timely fund or (c)
the Obligations under this Agreement shall have been declared or shall have
become immediately due and payable. No Commitment of any Lender shall be
increased or otherwise affected by any such failure or rejection by any Lender.
Any payments of principal or interest which would, but for this subsection, be
paid to any Lender, shall be paid to the Lenders who shall not be in default
under their respective Commitments and who shall not have rejected any
Commitment, for application to the Loans or to provide cash collateral in such
manner and order as shall be determined by the Administrative Agent.
Section 3.20. Administrative Agent's Reliance.
Neither the Administrative Agent nor any Lender shall incur any
liability to the Borrower (nor shall the Administrative Agent incur any
liability to the Lenders) for acting upon any telephonic notice referred to in
this Agreement which the Administrative Agent believes in good faith to have
been given by a person authorized to deliver such notice or for otherwise acting
in good faith hereunder.
Section 3.21. Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all penalties, interest and other liabilities with respect thereto, excluding,
in the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender (or its Lending Office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings,
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
under this Agreement or any other Loan Document to any Lender or the
Administrative Agent, (i) the sum payable hereunder or under such other Loan
Document shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.21.) such Lender or the Administrative Agent receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Law, and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 11.1., the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise, privilege, intangible,
registration, recordation or property taxes or charges or similar levies, taxes
and charges which arise from any payment made under this Agreement or any other
Loan Document or from the execution, delivery, performance and enforcement of,
or otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.21.) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
Payment of this indemnification shall be made within 30 days from the date such
Lender or the Administrative Agent delivers a certificate to the Borrower
certifying and setting forth in reasonable detail the calculation thereof as to
the amount and type of such Taxes or Other Taxes. Any such certificate submitted
by the Lender or the Administrative Agent in good faith to the Borrower shall,
absent manifest error, be final, conclusive and binding on all parties.
(d) Each Foreign Lender, on or prior to the Agreement Date in the case
of each Lender listed on the signature pages hereof, and on or prior to the date
on which it becomes a Lender, in the case of each other Lender, and from time to
time thereafter if requested in writing by the Borrower or the Administrative
Agent (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Administrative Agent with (i) Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States, (ii) Internal Revenue
Service Form W-8 or W-9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and (iii) any other form or certificate required by
any taxing authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is entitled to
an exemption from or a reduced rate of tax on payments pursuant to this
Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Foreign Lender has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to subsection (d) above (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled to
indemnification under subsection (a) or (b) above with respect to Taxes imposed
by the United States; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes, the Borrower shall furnish to the Administrative Agent the original
or a certified copy of a receipt evidencing such payment.
(g) Without prejudice to the survival of any other covenant or
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 3.21. shall survive the termination of the
Commitments and the payment in full of the Notes and other Obligations.
Section 3.22. Affected Lenders.
If the Borrower is obligated to pay to any Lender any amount under
Sections 3.17. or 3.21., the Borrower may, if (i) no Default or Event of Default
then exists and (ii) Requisite Lenders have not made a claim for indemnification
under such Section(s), replace such Lender with another lender acceptable to the
Administrative Agent, and such Lender hereby agrees to be so replaced subject to
the following:
(a) The obligations of the Borrower hereunder to the Lender to be
replaced (including such increased or additional costs incurred from the date of
notice to the Borrower of such increase or additional costs through the date
such Lender is replaced hereunder) shall be paid in full to such Lender
concurrently with such replacement;
(b) The replacement Lender shall be a bank or other financial
institution that is not subject to the increased costs arising under such
section(s) which may have effectuated the Borrower's election to replace any
Lender hereunder, and each such replacement Lender shall execute and deliver to
the Administrative Agent such documentation satisfactory to the Administrative
Agent pursuant to which such replacement Lender is to become a party hereto,
conforming to the provisions of Section 11.5., with a Commitment equal to that
of the Lender being replaced and shall make Loans in the aggregate principal
amount equal to the aggregate outstanding principal amount of the Loans of the
Lender being replaced;
(c) Upon such execution of such documents referred to in clause (b) and
repayment of the amounts referred to in clause (a), the replacement lender shall
be a "Lender" with a Commitment as specified hereinabove and the Lender being
replaced shall cease to be a "Lender" hereunder, except with respect to
indemnification provisions under this Agreement, which shall survive as to such
replaced Lender;
(d) The Administrative Agent shall reasonably cooperate in effectuating
the replacement of any Lender under this Section, but at no time shall the
Administrative Agent be obligated to initiate any such replacement; and
(e) Any Lender replaced under this Section shall be replaced at the
Borrower's sole cost and expenses and at no cost or expense to the
Administrative Agent or any of the Lenders.
Section 3.23. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.17. and 3.21. to reduce the
liability of Borrower or avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as determined by such Lender
in its sole discretion.
ARTICLE 4. CONDITIONS PRECEDENT
Section 4.1. Conditions Precedent to Initial Loan.
This Agreement, and the obligation of the Lenders to make any Syndicate
Loans to the Borrower in accordance with the terms hereof, is subject to the
condition precedent that the Borrower deliver to the Administrative Agent each
of the following, each of which shall be satisfactory in form and substance to
the Administrative Agent:
(a) Corporate Diligence
(i) Certified copies (certified by the respective Secretary or
Assistant Secretary of each Loan Party (each such Person shall be the
"Authenticating Person" with respect to such Loan Party)) of all
corporate or other necessary action taken by each Loan Party to
authorize the execution, delivery and performance of the Loan Documents
to which it is a party;
(ii)(A) With respect to each Loan Party, the articles or
certificate of incorporation and by-laws of such Person, certified by
an Authenticating Person of each such Loan Party as being true and
correct copies thereof then in full force and effect; (B) with respect
to each Loan Party, a certificate of existence or other good standing
certificate issued by the Secretary of State of the jurisdiction in
which such Person was formed; (C) with respect to the Borrower, a
certificate of qualification to transact business or other comparable
certificate issued by the Secretary of State (and any state department
of taxation, as applicable) of each state in which the Borrower
operates a plant or distribution facility; and (D) certificates of
incumbency and specimen signatures signed by the appropriate
Authenticating Person with respect to each of the officers or other
Persons of each Loan Party who are authorized to execute and deliver
the Loan Documents to which such Loan Party is a party;
(iii) An opinion of Bennie M. Laughter, the Vice President and
General Counsel of the Borrower and the other Loan Parties, addressed
to the Administrative Agent and the Lenders in substantially the form
of Exhibit E;
(iv) Copies of all Governmental Approvals, if any, required to
be made or obtained by each Loan Party in connection with the execution
and delivery of this Agreement and the other Loan Documents and the
consummation of the transactions contemplated hereby;
(v) a certificate executed by the chief executive officer,
chief financial officer or treasurer of the Borrower, stating that: (a)
on such date, and after giving effect to the transactions contemplated
hereby, no Default or Event of Default has occurred and is continuing;
(b) no material adverse change in the condition (financial or
otherwise), operations, business or assets of the Borrower or any of
its Subsidiaries, taken as a whole, has occurred since January 2, 1999
except as disclosed in public filings with the Securities and Exchange
Commission since such date; (c) the representations and warranties of
the Loan Parties set forth herein and in the other Loan Documents are
true and correct in all material respects on and as of such date with
the same effect as though made on and as of such date; and (d) on such
date each Loan Party is in compliance with all the terms and provisions
set forth in this Agreement and the other Loan Documents on its part to
be observed and performed.
(b) Supplemental Closing Documents.
(i) Notes executed by the Borrower, payable to the order of
the Lenders and complying with the terms of Section 3.7.;
(ii) a Guaranty executed by each Material Subsidiary and/or
each Subsidiary comprising the Material Subsidiary Group;
(iii) favorable UCC, tax, judgment and lien search reports
with respect to the Borrower, any appropriate Subsidiary and any
appropriate Loan Party in all necessary or appropriate jurisdictions
and under all legal and appropriate trade names indicating that there
are no Liens on any assets of such Person other than Permitted Liens;
(c) Other Documents
(i) evidence that all Fees and other amounts due the
Administrative Agent and the Lenders hereunder and under the other Loan
Documents have been paid; and
(ii) such other documents and instruments as the
Administrative Agent or a Lender may reasonably request.
Section 4.2. Conditions Precedent to All Syndicate Loans.
The obligation of the Lenders to make Syndicate Loans is subject to the
further condition precedent that, as of the date of each such Loan and after
giving effect thereto: (a) no Default or Event of Default shall have occurred
and be continuing; (b) the representations and warranties made or deemed made by
the Borrower in this Agreement and the other Loan Documents to which it is a
party and by each other Loan Party in the Loan Documents to which it is a party,
shall be true and correct on and as of the date of the making of such Loan with
the same force and effect as if made on and as of such date except to the extent
that (i) such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and accurate on and as of such earlier date) and (ii) except for changes in
factual circumstances specifically and expressly permitted hereunder; (c) no
Material Adverse Change with respect to the Borrower and its Subsidiaries, taken
as a whole, shall have occurred since the Effective Date; (d) there is no
pending or threatened suit, cause of action or proceeding against any Loan Party
that could reasonably have a Material Adverse Effect on the Borrower or any of
its Subsidiaries taken as a whole; and (e) if any suit, action, arbitration,
investigation or other proceeding is then pending against any Loan Party, no
event or circumstance has occurred with relation to such suit, action,
arbitration, investigation or other proceeding which could reasonably be
expected to have a Material Adverse Effect on the Borrower or any of its
Subsidiaries taken as a whole. Each Credit Event shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of the giving of notice relating to such Credit Event and,
unless the Borrower otherwise notifies the Administrative Agent prior to the
date of Credit Event, as of the date of such Credit Event).
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
Section 5.1. Representations and Warranties.
In order to induce the Administrative Agent and each Lender to enter
into this Agreement and to make Loans hereunder, the Borrower represents and
warrants to the Administrative Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Loan Parties is a
corporation, duly organized, validly existing and in good standing under the
jurisdiction of its incorporation, has the power and authority to own or lease
its respective properties and to carry on its respective business as now being
and hereafter proposed to be conducted and is duly qualified and is in good
standing 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 and where the failure to
be so qualified or authorized would have a Material Adverse Effect.
(b) Ownership Structure; Subsidiaries. Schedule 5.1.(b) correctly sets
forth, as of the Agreement Date, the corporate structure and ownership interests
(including percentage ownership) of the Borrower and all of its Affiliates
including the correct legal name of the Borrower and each Affiliate, and, in the
case of Affiliates, the partners or shareholders, as applicable, or other
Persons holding equity interests in such Affiliates and their percentage equity
or voting interest in such Affiliates. As of the Agreement Date, Schedule 5.1(b)
correctly sets forth (i) each Material Subsidiary and (ii) each Subsidiary
comprising the Material Subsidiary Group.
(c) Authorization and Enforceability. The Borrower and each other Loan
Party has the right and power, and has taken all necessary action to authorize
it, to borrow hereunder and to execute, deliver and perform this Agreement, the
Notes and the other Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated hereby.
This Agreement, the Notes and each of the other Loan Documents to which the
Borrower or other Loan Party is a party have been duly executed and delivered by
such Person and each is a legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its respective terms.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, etc. The execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which the Borrower or any other Loan Party is a
party in accordance with their respective terms and the Borrowings hereunder do
not and will not, by the passage of time, the giving of notice, a determination
of materiality, the satisfaction of any condition, any combination of the
foregoing, or otherwise: (i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any other Loan Party; (ii) conflict
with, result in a breach of or constitute a default under (A) the articles of
incorporation or the bylaws of the Borrower or the organizational documents of
any other Loan Party, or (B) any indenture, agreement or other instrument to
which the Borrower or any other Loan Party is a party or by which it or any of
its properties may be bound the violation of which could have a Material Adverse
Effect and, in any event, any agreement, indenture or instrument evidencing any
Consolidated Funded Debt; or (iii) 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 or any other Loan Party other than in favor
of the Administrative Agent for the benefit of the Lenders. Neither the making
of the Loans nor the use of proceeds thereof will violate, or be inconsistent
with, the provisions of Regulations T, U or X of the Board of Governors of the
Federal Reserve System.
(e) Compliance with Law; Governmental Approvals. The Borrower, each
Subsidiary and each other Loan Party is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
relating to the Borrower, a Subsidiary or such Loan Party except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, singly or in the aggregate, cause a Default or Event of Default or
have a Material Adverse Effect.
(f) Titles to Properties; No Liens. The Borrower, its Subsidiaries and
the other Loan Parties have good, marketable and legal title to, or a valid
leasehold interest in, its respective properties and assets including, but not
limited to, those reflected on the consolidated balance sheet of the Borrower as
at January 2, 1999, except those which have been disposed of by the Borrower
subsequent to such date in the ordinary course of business or in other
transactions disclosed in filings by the Borrower with the Securities and
Exchange Commission so long as copies thereof have been provided to the Lenders
pursuant to Section 7.6 or otherwise. None of the assets of the Borrower or any
of its Subsidiaries is subject to any Lien other than Permitted Liens.
(g) Indebtedness and Guarantees. Schedule 1.1.(a) is a complete and
correct listing of all (i) Existing Consolidated Funded Debt of the Borrower and
its Subsidiaries and the other Loan Parties, (ii) Guarantees of the Borrower and
its Subsidiaries and the other Loan Parties of any Indebtedness and (iii) all
letters of credit and acceptance facilities extended to the Borrower and/or any
Subsidiary or other Loan Parties. Schedule 1.1.(b) sets forth all Liens on any
property of the Borrower and its Subsidiaries securing any Indebtedness. No
default or event of default, or event or condition which with the giving of
notice, the lapse of time, a determination of materiality, the satisfaction of
any other condition or any combination of the foregoing, would constitute such a
default or event of default, exists with respect to any such Indebtedness or
Guaranty.
(h) Litigation. Except as set forth on Schedule 5.1.(h), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Borrower, any Subsidiary or any other Loan Party or any of its respective
property before or by any Governmental Authority which, if adversely determined,
could have a Material Adverse Effect, and there are no strikes, slow downs, work
stoppages or walkouts or other labor disputes in progress or threatened relating
to the Borrower, any Subsidiary or any other Loan Party.
(i) Taxes. All federal, state and other tax returns of the Borrower and
any Subsidiary or Loan Party required by Applicable Law to be filed have been
filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon the Borrower, any Subsidiary and each Loan
Party and its properties, income, profits and assets which are due and payable
have been paid, except any such nonpayment which is at the time permitted under
Section 6.6. None of the United States income tax returns of the Borrower, its
Subsidiaries or any Loan Party are under audit. All charges, accruals and
reserves on the books of the Borrower and each of its Subsidiaries in respect of
any taxes or other governmental charges are in accordance with GAAP.
(j) Financial Statements and Condition; Solvency. The Borrower has
heretofore furnished to each of the Lenders (i) the consolidated balance sheet
of the Borrower and its Subsidiaries as at January 2, 1999 and the related
consolidated statements of income, retained earnings and cash flow of the
Borrower and its Subsidiaries for the fiscal year ended on said date, with the
opinion thereon of Arthur Andersen LLP (collectively, the "Audited Financial
Statements"); and (ii) the consolidated unaudited balance sheet of the Borrower
and its Subsidiaries as at July 3, 1999 and the related consolidated statements
of income, retained earnings and cash flow of the Borrower and its Subsidiaries
for the fiscal quarter ended on said date (collectively, the "Unaudited
Financial Statements"; the Audited Financial Statements and the Unaudited
Financial Statements are collectively referred to as the "Financial
Statements"). The Financial Statements fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as at said dates and the
consolidated results of their operations for the fiscal year ended on said
dates, all in accordance with GAAP. None of the Borrower nor any of its
Subsidiaries has on the Agreement Date any material contingent liabilities,
liabilities for taxes, unusual or long-term commitments or unrealized or forward
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in the Financial Statements. Since January 2, 1999, no
Material Adverse Change has occurred except as may have been disclosed in
filings by the Borrower with the Securities and Exchange Commission so long as
copies thereof have been provided to the Lenders pursuant to Section 7.6 or
otherwise. Each of the Borrower, the Loan Parties and the other Subsidiaries is
Solvent.
(k) ERISA. Each Plan, and, to the knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all respects with, and has been
administered in all respects in compliance with, the applicable provisions of
ERISA, the Internal Revenue Code and any other Applicable Law except where
failure to be so in compliance or to be so administered could not result in a
Material Adverse Effect, and, on and as of the Agreement Date, no event or
condition has occurred and is continuing as to which the Borrower would be under
an obligation to furnish a report to the Lenders under Section 7.5.
(l) Absence of Defaults. Neither the Borrower, any Subsidiary thereof
nor any Loan Party is in violation of its articles or certificate of
incorporation or its bylaws, 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, the
giving of notice, a determination of materiality, the satisfaction of any
condition, or any combination of the foregoing, would constitute, a default or
event of default by the Borrower, any Subsidiary or any Loan Party under any
agreement (other than this Agreement) or judgment, decree or order to which the
Borrower or any Subsidiary or Loan Party is a party or by which the Borrower or
any Subsidiary or Loan Party or any of their respective properties may be bound
where such default would, individually or in the aggregate, have a Material
Adverse Effect.
(m) Environmental Laws. Except as set forth on Schedule 5.1.(m) hereof,
the Borrower, its Subsidiaries and each other Loan Party are in compliance with
all Environmental Laws, the failure with which to comply would have a Material
Adverse Effect. The Borrower is not aware of, and has not received notice of,
any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower, its
Subsidiaries and each other Loan Party, may interfere with or prevent compliance
or continued compliance with Environmental Laws, or may give rise to any
common-law or legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material; and there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice or violation, investigation, or proceeding pending or, to the Borrower's
knowledge, threatened, against the Borrower, its Subsidiaries and each other
Loan Party relating in any way to Environmental Laws.
(n) Use of Proceeds. All proceeds of the Loans will be used only in
accordance with Sections 6.8. and 8.12.
(o) Investment Company; Public Utility Holding Company. Neither the
Borrower nor any of the Subsidiaries or Loan Parties is (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject
to any other law which purports to regulate or restrict its ability to borrow
money or to consummate the transactions contemplated by this Agreement or the
other Loan Documents or to perform its obligations hereunder or thereunder.
(p) Margin Stock. Neither the Company, any Subsidiary nor any Loan
Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulations
U and X of the Board of Governors of the Federal Reserve System.
(q) Affiliate Transactions. Except as set forth on Schedule 5.1.(q) or
as permitted by Section 8.8., neither the Borrower nor any Subsidiary or Loan
Party is a party to or bound by any agreement or arrangement (whether oral or
written) to which any Affiliate of the Borrower or any Subsidiary is a party
except (i) in the ordinary course of and pursuant to the reasonable requirements
of the Borrower's or such Subsidiary's business and (ii) upon fair and
reasonable terms no less favorable to the Borrower and such Subsidiary than it
could obtain in a comparable arm's-length transaction with an unaffiliated
Person. Neither the Borrower nor any Subsidiary is a party to any agreement or
arrangement which restricts or prohibits the payment of dividends or the
repayment of inter-company loans by a Subsidiary to the Borrower.
(r) Intellectual Property. The Borrower and its Subsidiaries own or
have the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to the conduct of their
businesses as now conducted, without known conflict with any patent, license,
franchise, trademark, trade secrets and confidential commercial or proprietary
information, trade name, copyright, rights to trade secrets or other proprietary
rights of any other Person.
(s) Year 2000. (i) The Borrower has (A) undertaken a detailed review
and assessment of all areas within its and its Subsidiaries' business and
operations that could be adversely affected by the "Year 2000 problem" (that is,
the risk that computer applications used by the Borrower or its Subsidiaries,
may be unable to recognize and perform properly date sensitive functions
involving certain dates prior to and any date after December 31, 1999), (B)
developed a plan and timeline for addressing any Year 2000 problem on a timely
basis, and (C) implemented such plan in accordance with such timetable. The
Borrower reasonably anticipates that all computer applications that are material
to its and its Subsidiaries' business and operations will on a timely basis be
able to perform property date-sensitive functions for all dates before and after
January 1, 2000 (i.e., be "Year 2000 compliant"); and (ii) the Borrower has
inquired of each of its and its Subsidiaries material suppliers, vendors and
customers as to whether such Persons will on a timely basis be Year 2000
compliant in all material respects and taken appropriate remedial action with
respect to any of such Persons who are not expected to be so complaint. For
purposes hereof "material suppliers, vendors and customers" refers to those
suppliers, vendors and customers of the Borrower or its Subsidiaries, the
business failure of which would with reasonable probability result in a Material
Adverse Effect.
(t) Accuracy and Completeness of Information. All written information,
reports and other papers and data furnished to the Administrative Agent or any
Lender by, on behalf of, or at the direction of, the Borrower, any Subsidiary or
any other Loan Party 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, or, in the case of
financial statements, present fairly, in accordance with GAAP consistently
applied throughout the periods involved, the financial position of the Persons
involved as at the date thereof and the results of operations for such periods.
All financial projections and other pro forma financial information delivered to
the Administrative Agent and/or the Lenders have been and will be based on good
faith estimates and assumptions believed by the Borrower and its Subsidiaries to
be reasonable at the time made and at the time furnished to the Administrative
Agent and/or the Lenders. No fact is known to the Borrower which has had, or may
in the future have (so far as the Borrower can reasonably foresee), a Material
Adverse Effect which has not been set forth in the financial statements referred
to in Section 5.1.(j) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Administrative Agent and the Lenders prior
to the Agreement Date. No document furnished or written statement made to the
Administrative Agent or any Lender in connection with the negotiation,
preparation or execution of this Agreement or any of the other Loan Documents
contains or will contain any untrue statement of a fact material to the
creditworthiness of the Borrower, any Subsidiary or any other Loan Party or
omits or will omit to state a material fact necessary in order to make the
statements contained therein not misleading.
Section 5.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower or any Loan Party to
the Administrative Agent or any Lender pursuant to or in connection with this
Agreement or any of the other Loan Documents (including any statement contained
in any certificate, financial statement or other instrument delivered by or on
behalf of the Borrower prior to the Agreement Date and delivered to the
Administrative Agent or the Lenders in connection with closing the transactions
contemplated hereby) shall constitute representations and warranties made by the
Borrower under this Agreement. All representations and warranties made under
this Agreement shall be deemed to be made at and as of the Agreement Date, the
Effective Date and at and as of the date of any Credit Event, except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and accurate on and as of such earlier date) and except for changes in
factual circumstances specifically permitted hereunder.
ARTICLE 6. AFFIRMATIVE COVENANTS
For so long as any of the Obligations remains outstanding, unpaid or
unperformed, or this Agreement is in effect, the Borrower shall, and shall cause
each Subsidiary and the other Loan Parties to:
Section 6.1. Preservation of Existence and Similar Matters.
Preserve and maintain its respective existence, rights, franchises,
licenses and privileges in the jurisdiction of its formation and qualify and
remain 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 and authorization and where the failure to be so authorized and
qualified would have a Material Adverse Effect.
Section 6.2. Compliance with Applicable Law.
Comply with all Applicable Law, including the obtaining of all
Governmental Approvals, if the failure to comply with which would have a
Material Adverse Effect.
Section 6.3. Maintenance of Property.
In addition to, and not in derogation of, the requirements of any of
the other Loan Documents, (a) protect and preserve all of its material
properties, including, but not limited to, copyrights, patents, trade names and
trademarks, and maintain in good repair, working order and condition all
tangible properties, and (b) maintain all of its properties used or useful in
its business in good working order and condition, ordinary wear and tear
excepted.
Section 6.4. Conduct of Business.
At all times carry on its respective businesses in the same fields as
engaged in on the Agreement Date and not enter into any field of business not
otherwise engaged in as of the Agreement Date or otherwise reasonably related
thereto.
Section 6.5. Insurance.
In addition to, and not in derogation of, the requirements of any of
the other Loan Documents, maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as is
customarily maintained by similar businesses or as may be required by Applicable
Law.
Section 6.6. 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, and (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 such Person;
provided, however, that this Section 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 which operate to suspend the collection
thereof and for which adequate reserves have been established on the books of
the Borrower or Subsidiary, as appropriate, in accordance with GAAP.
Section 6.7. Visits and Inspections.
Permit representatives or agents of any Lender or the Administrative
Agent, from time to time, as often as may be reasonably requested to: (a) visit
and inspect all properties of the Borrower or any Material Subsidiary; (b)
inspect and make extracts from their respective books and records; and (c)
discuss with its principal officers, and its independent accountants, business,
assets, liabilities, financial conditions, results of operations and business
prospects.
Section 6.8. Use of Proceeds.
Use the proceeds of all Loans only for (i) working capital, capital
expenditures and other general corporate purposes, (ii) stock repurchases to the
extent permitted under Section 8.12. and (iii) acquisitions to the extent
permitted under Section 8.3.
Section 6.9. Material Subsidiaries.
Upon (a) the acquisition, incorporation or other creation of a Material
Subsidiary, (b) becoming a Material Subsidiary or (c) the existence of a
Material Subsidiary Group, the Borrower shall cause such Material Subsidiary (or
the Subsidiaries comprising the Material Subsidiary Group, as the case may be)
to execute and deliver in favor of the Administrative Agent for the benefit of
the Lenders within 10 Business Days of such acquisition, incorporation, creation
or coming into existence a Guaranty in the form of Exhibit F. The delivery of
any such Guaranty to the Administrative Agent shall be accompanied by an opinion
of counsel to the Borrower and such Material Subsidiary (or Subsidiaries, as the
case may be) as to matters regarding due authorization, execution and delivery
and enforceability of such Guaranty and to such other matters as the
Administrative Agent or its counsel shall reasonably request.
Section 6.10. Environmental Matters.
Except as described in Schedule 5.1.(m) hereof, comply in all respects
with all Environmental Laws the failure with which to comply would have a
Material Adverse Effect. If the Borrower or any of the Subsidiaries shall (a)
receive notice that any violation of any Environmental Law may have been
committed or is about to be committed by the Borrower or any of the
Subsidiaries, (b) receive notice that any administrative or judicial complaint
or order has been filed or is about to be filed against the Borrower or any of
the Subsidiaries alleging violations of any Environmental Law or requiring the
Borrower or any of the Subsidiaries to take any action in connection with the
release of Hazardous Materials or (c) receive any notice from a Governmental
Authority or private party alleging that the Borrower or any of the Subsidiaries
may be liable or responsible for costs associated with a response to or cleanup
of a release of a Hazardous Material or any damages caused thereby, and such
notices, individually or in the aggregate, could have a Material Adverse Effect,
then the Borrower shall provide the Administrative Agent and each Lender with a
copy of such notice within 10 Business Days after the receipt thereof by the
Borrower or any of the Subsidiaries. Within thirty days after the Borrower
learns of the enactment or promulgation of any Environmental Law which could
have a Material Adverse Effect, the Borrower shall provide the Administrative
Agent and each Lender with notice thereof. The Borrower shall, and shall cause
its Subsidiaries and the other Loan Parties to, promptly take all actions
necessary to prevent the imposition of any Liens on any of their respective
properties arising out of or related to any Environmental Laws.
Section 6.11. Performance of Obligations.
Perform in all material respects all of its obligations under the terms
of all agreements, indentures, security documents or other debt instruments to
which it is a party or by which it may be bound.
ARTICLE 7. INFORMATION
For so long as any of the Obligations remains outstanding, unpaid or
unperformed, or this Agreement is in effect, the Borrower shall furnish to the
Administrative Agent at its Principal Office and to each Lender at its Lending
Office:
Section 7.1. Quarterly Financial Statements.
As soon as available and in any event within 45 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
consolidated balance sheets of the Borrower and its Subsidiaries as at the end
of such period and the related consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries for such period,
setting forth in each case in comparative form the figures for the corresponding
periods of the previous fiscal year, all of which shall be certified by the
chief financial officer or the treasurer of the Borrower, in his or her opinion,
to present fairly, in accordance with GAAP, the consolidated financial position
of the Borrower and its Subsidiaries as at the date thereof and the results of
operations for such period (subject to normal year-end audit adjustments).
Section 7.2. Year-End Statements.
As soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, the consolidated balance sheets of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year, all of which
shall be certified by the chief financial officer or the treasurer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP, the
financial position of the Borrower as at the date thereof and the result of
operations for such period and by Arthur Andersen LLP or another independent
certified public accountants of recognized national standing acceptable to the
Administrative Agent and the Requisite Lenders, whose certificate shall be in
scope and substance satisfactory to the Administrative Agent and the Requisite
Lenders and who shall have authorized the Borrower to deliver such financial
statements and certification thereof to the Administrative Agent and the Lenders
pursuant to this Agreement.
Section 7.3. Compliance Certificate.
At the time the financial statements are furnished pursuant to Sections
7.1. and 7.2., in the case of the Borrower's interim quarterly financial
statements, a certificate executed by the chief financial officer or the
treasurer substantially in the form of Exhibit H attached hereto, or in the case
of the audited annual financial statements, a certificate executed by the
independent public accountants performing the audit of such statements:
(a) setting forth as at the end of such quarterly accounting period or
fiscal year, as the case may be, the calculations required to establish whether
or not the Borrower, and when appropriate its Subsidiaries, were in compliance
with the covenants contained in Article 8.; and
(b) stating that, to the best of his or their knowledge, information
and belief, 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
and, in the case of the certificate executed by the chief financial officer or
the treasurer, whether it is continuing and the steps being taken by the
Borrower with respect to such event, condition or failure.
Section 7.4. Notice of Litigation and Other Matters.
Prompt notice of:
(a) to the extent the Borrower is aware of the same, the commencement
of all proceedings and investigations by or before any Governmental Authority
and all actions and proceedings in any court or other tribunal or before any
arbitrator against or in any other way relating adversely to, or adversely
affecting, the Borrower, any Subsidiary or any other Loan Party or any of their
respective properties, assets or businesses which, if adversely determined or
resolved, would have a Material Adverse Effect;
(b) any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Borrower, any
Subsidiary or any other Loan Party which has had or may have Material Adverse
Effect;
(c) the occurrence of any Default or Event of Default;
(d) any order, judgment or decree in excess of $5,000,000 having been
entered against the Borrower, any of the Subsidiaries or any other Loan Party or
any of their respective properties or assets;
(e) the acquisition, incorporation or other creation of any Subsidiary
and the purpose therefor and the amount and nature of the assets to be owned
thereby;
(f) the proposed sale, transfer or other disposition of any material
assets of the Borrower or any Subsidiary to any Subsidiary, Affiliate or other
Person; or
(g) any strikes, slow downs, work stoppages or walkouts or other labor
disputes in progress or threatened relating to the Borrower, any Subsidiary or
any other Loan Party.
Section 7.5. ERISA Reporting.
The Borrower shall deliver to the Administrative Agent and each Lender,
at the Borrower's expense, the following information at the times specified
below:
(a) within ten Business Days after the Borrower, any Subsidiary or any
ERISA Affiliate knows or has reason to know that a Termination Event has
occurred, a written statement of the chief financial officer or the treasurer of
the Borrower describing such Termination Event and the action, if any, which the
Borrower or other such entities have taken, are taking or propose to take with
respect thereto, and when known, any action taken or threatened by the Internal
Revenue Service, Department of Labor or PBGC with respect thereto;
(b) within ten Business Days after the Borrower, any Subsidiary or any
ERISA Affiliate knows or has reason to know that a non-exempt prohibited
transaction (as defined in Sections 406 of ERISA and 4975 of the Internal
Revenue Code) has occurred with respect to a Plan, a statement of the chief
financial officer of the Borrower describing such transaction and the action
which the Borrower or other such entities have taken, are taking or propose to
take with respect thereto, except where the liability resulting therefrom could
not reasonably exceed $1,000,000;
(c) within ten Business Days after the request by Administrative Agent
therefor, after the filing thereof with the Department of Labor, Internal
Revenue Service or PBGC, copies of each annual report (form 5500 series),
including Schedule B thereto, filed with respect to each Plan which is a defined
benefit plan as defined in ERISA ss.3(35);
(d) within ten Business Days after the request by Administrative Agent
therefor, after receipt by the Borrower, any Subsidiary or any ERISA Affiliate
of each actuarial report for any Plan which is a defined benefit plan as defined
in ERISA ss.3(35) or Multiemployer Plan and each annual report for any
Multiemployer Plan, copies of each such report;
(e) within ten Business Days upon the occurrence thereof, notification
of any increase in the benefits of any existing Plan (other than payroll
practices) or the establishment of any new Plan (other than payroll practices)
or the commencement of contributions to any Plan (other than payroll practices)
to which the Borrower, any Subsidiary or any ERISA Affiliate was not previously
contributing, except where the increased liability resulting therefrom could not
reasonably exceed $1,000,000;
(f) within ten Business Days after receipt by the Borrower, any
Subsidiary or any ERISA Affiliate of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies of each
such notice;
(g) within ten Business Days after receipt by the Borrower, any
Subsidiary or any ERISA Affiliate of any unfavorable determination letter from
the Internal Revenue Service regarding the qualification of a Plan under Section
401(a) of the Internal Revenue Code, copies of each such letter;
(h) within ten Business Days after receipt by the Borrower, any
Subsidiary or any ERISA Affiliate of a notice regarding the imposition of
withdrawal liability under a Multiemployer Plan, copies of each such notice;
(i) within three Business Days after the Borrower, any Subsidiary or
any ERISA Affiliate fail to make a required installment payment in excess of
$100,000 or any other required payment under Section 412 of the Internal Revenue
Code (as calculated by the Plan actuary or as reflected in any Plan actuarial
report available before the due date for such payment) to a Plan on or before
the due date for such payment, a notification of such failure; and
(j) within three Business Days after the Borrower, any Subsidiary or
any ERISA Affiliate knows (a) a Multiemployer Plan has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan intends to terminate a
Multiemployer Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan, in each case
where liability resulting therefrom could reasonably be expected to exceed
$1,000,000, a written statement setting forth any such event or information.
For purposes of this Section 7.5., the Borrower, any Subsidiary and any
ERISA Affiliate shall be deemed to know all facts known by the administrator of
any Plan of which such entity is the plan sponsor.
The Borrower shall establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA, Internal Revenue Code,
and all other Applicable Laws, and the regulations and interpretations
thereunder other than to the extent that Borrower is in good faith contesting by
appropriate proceedings the validity or implication of any such provision, law,
rule, regulation or interpretation.
Section 7.6. Copies of Other Reports.
(a) Promptly upon their becoming available, copies of all registration
statements and other periodic or special reports containing material information
or developments regarding the Borrower and its Subsidiaries which the Borrower
shall file with the Securities and Exchange Commission (or any Governmental
Authority substituted therefor) or any national securities exchange; and
(b) Promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed.
Section 7.7. Other Information.
(a) A statement or statements in conformity with the requirements of
Federal Reserve Forms G-3 and/or U-1 referred to in Regulations U of the Board
of Governors of the Federal Reserve System and other documents evidencing its
compliance with the margin regulations.
(b) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower, its Subsidiaries and the other Loan Parties
as any Lender or the Administrative Agent may reasonably request. The rights of
the Lenders and the Administrative Agent under this Section are in addition to
and not in limitation of their rights under any other provision of this
Agreement or any of the other Loan Documents.
ARTICLE 8. NEGATIVE COVENANTS
For so long as any of the Obligations remains outstanding, unpaid or
unperformed, or this Agreement is in effect, the Borrower shall not, directly or
indirectly:
Section 8.1. Financial Covenants.
(a) EBIT to Interest Ratio. Permit, as at the end of each fiscal
quarter of the Borrower, the Consolidated EBIT/Interest Ratio to be less than
2.25 to 1.00.
(b) Funded Debt to EBITDA Ratio. Permit, as of the end of each fiscal
quarter of the Borrower, the Consolidated Funded Debt/EBITDA Ratio to be greater
than 4.00 to 1.00.
Section 8.2. Indebtedness.
Create, assume or suffer to exist or be created, or permit any
Subsidiary to create, assume or suffer to exist or be created, any Indebtedness
other than the following:
(a) the Obligations;
(b) Existing Consolidated Funded Debt and any extensions, renewals,
replacements or refinancings thereof; provided, however, that (i) the principal
amount of any Consolidated Funded Debt incurred by the Borrower, the purpose of
which is to replace or refinance Existing Consolidated Funded Debt, may not
exceed the then outstanding amount of the Existing Consolidated Funded Debt to
be refinanced without the prior written consent of the Requisite Lenders unless
such Consolidated Funded Debt would otherwise be permitted under paragraph (f)
below and (ii) the principal amount of any Consolidated Funded Debt incurred by
a Subsidiary, the purpose of which is to replace or refinance the Existing
Consolidated Funded Debt of such Subsidiary, may not exceed the then outstanding
amount of the Existing Consolidated Funded Debt to be replaced or refinanced
unless the Borrower or such Subsidiary shall give the Administrative Agent prior
written notice of such increase;
(c) trade payables and other accrued liabilities arising in the
ordinary course of business;
(d) Indebtedness secured by Purchase Money Liens and Indebtedness
constituting Capitalized Lease Obligations; provided, however, that the
aggregate principal amount of the Indebtedness described in this subsection at
any one time outstanding and owing by the Borrower and its Subsidiaries may not
exceed $50,000,000;
(e) Indebtedness owing to the Borrower by its Subsidiaries;
(f) (i) Consolidated Funded Debt incurred by the Borrower after the
Effective Date and (ii) Indebtedness owing by Nylon Polymer Company, L.L.C., a
Georgia limited liability company ("Nylon Polymer") to SunTrust Bank, Atlanta,
N.A. and Wachovia Bank, N.A., as lenders (the "Nylon Polymers Lenders"), in the
original principal amounts of $26,250,000 ("Nylon Polymer Term Loan A") and
$8,750,000 ("Nylon Polymer Term Loan B"), respectively, pursuant to that certain
Term Loan Agreement dated as of September 12, 1997, as amended from time to
time, by and among Nylon Polymer, as borrower, the Nylon Polymer Lenders and
SunTrust Bank, Atlanta, as Agent; provided, however that the amount of
Indebtedness permitted under this subsection (f) shall not (1) at any time
exceed 20% of Total Assets and (2) be secured by a Lien on any property or other
asset of the Borrower or any of its Subsidiaries;
(g) any Hedging Obligations;
(h) (i) Guaranties in existence as of the Agreement Date and disclosed
on Schedule 1.1(a) hereof; (ii) Guaranties by the Borrower (and in the case of
Nylon Polymer Term Loan A, also by Shaw Contract Flooring Services, Inc. "Shaw
Contract")) of any of the foregoing Indebtedness; provided that such Guaranteed
Indebtedness is permitted under this Section 8.2.; and (iii) Guaranties by the
Borrower and Shaw Contract of Indebtedness of La Mirada Realty, L.L.C., a
Georgia limited liability company ("La Mirada") pursuant to that certain Amended
and Restated Guaranty Agreement dated as of October 6, 1998 (the "La Mirada
Guaranty"), executed by the Borrower and Shaw Contract, relating to a term loan
facility in the maximum principal amount of $12,200,000, made pursuant to that
certain Term Loan Agreement dated as of October 8, 1997, as amended from time to
time (provided that the principal amount thereof is not increased), by and among
La Mirada, as borrower, SunTrust Bank, Atlanta, and Wachovia Bank, N.A., as
lenders, and SunTrust Bank, Atlanta, as Agent; provided, however, that amount of
Indebtedness so Guaranteed pursuant to this clause (iii) and then outstanding
shall reduce (in an equal amount) the amount of Indebtedness permitted to be
incurred and outstanding under subsection (f) above; and
(i) Sold Receivables Indebtedness in an aggregate amount at any time
outstanding not to exceed $325,000,000.
Section 8.3. Investments/Acquisitions.
(a) Acquire or purchase, or permit any Subsidiary to acquire or
purchase, any Business Unit or (b) acquire, make or purchase, or permit any
Subsidiary to acquire, make or purchase, any Investment or (c) permit any
Investment of the Borrower or any Subsidiary to be outstanding other than the
following:
(i) Investments in (A) Subsidiaries in existence on the
Agreement Date and disclosed on Schedule 5.1.(b); (B) Subsidiaries
created or acquired after the Agreement Date so long as the Borrower
complies with Section 6.9. (to the extent applicable) and, if the
creation or acquisition of such Subsidiary is in connection with the
acquisition or purchase of assets or capital stock of another Person,
such transaction is permitted by subparagraph (vi) below; and (C) a
Receivables Subsidiary;
(ii) Investments (other than in Subsidiaries) in existence on
the Agreement Date in excess of $100,000 and set forth on Schedule
8.3.(a) attached hereto;
(iii) Investments in Cash Equivalents;
(iv) Indebtedness permitted under Section 8.2.(e);
(v) Loans and advances to employees for moving, entertainment,
travel and other similar expenses in the ordinary course of business
consistent with past practices;
(vi) The Borrower, or any of its Subsidiaries, may acquire or
purchase all or a portion of the assets or properties of another Person
or any Business Unit of another Person and may acquire or purchase all
or a controlling interest of the capital stock of another Person so
long as the following conditions are satisfied: (A) that immediately
prior to, and immediately after, the consummation of such acquisition
or purchase, no Default or Event of Default has occurred and is
continuing; (B) the assets or Person so purchased or acquired relate
directly to a line or lines of business in which the Borrower is
engaged on the Agreement Date; (C) if the Borrower creates a Subsidiary
to effect such acquisition or purchase, the Borrower and such
Subsidiary (if it becomes a Material Subsidiary) shall comply with the
provisions of Section 6.9. hereof; (D) the Board of Directors (or other
similar management body) of the Person to be acquired recommends to its
shareholders (or other similar equity holders) that the shareholders
(or other similar equity holders) approve such acquisition; (E) if such
acquisition or purchase is consummated through a merger or
consolidation, the Borrower (or, after giving effect to the merger, a
Subsidiary of the Borrower including the acquired entity if it is the
survivor of the merger) shall be the surviving corporation; and (F)
immediately after giving effect to such acquisition or purchase, the
Borrower would, on a pro forma basis, be in compliance with the
financial covenants set forth in Section 8.1.; provided, however, that,
in the event the fair market value of the assets, properties, Business
Unit or capital stock so purchased or acquired exceeds $100,000,000,
the Borrower shall provide the Administrative Agent, at the time of
such purchase or acquisition, a certificate executed by the chief
financial officer of the Borrower certifying that each of the foregoing
conditions in this clause (vi) have been satisfied;
(vii) other Investments in Persons made by the Borrower and
the Subsidiaries from time to time; provided, however, that the
aggregate amount of all cash and non-cash consideration (determined on
a fair market value basis and net of all Transaction Costs) paid by the
Borrower and its Subsidiaries in such Investments shall not exceed
$50,000,000 in any fiscal year;
(viii) Investments permitted under Section 8.2.(h); and
(ix) Investments in The Maxim Group, Inc. ("Maxim") in the
form of: (A) 3,150,000 shares of common stock of Maxim and (B) a
certain Subordinated Promissory Note in the principal amount of
$18,048,000 executed by Maxim in favor of the Borrower.
Section 8.4. Liens/Agreements Regarding Liens/Other Matters.
(a) Create, assume, incur or permit or suffer to exist or to be
created, assumed or incurred, or permit any Subsidiary to create, assume or
suffer to exist or be created, any Lien upon any of its properties whether now
owned or hereafter acquired, other than Permitted Liens; provided, however, that
this clause (a) shall not be effective until such time as the Existing Credit
Agreement shall have been terminated or otherwise ceases to exist; or
(b) Enter into or assume any agreement (other than any Loan Document),
or permit any Subsidiary (other than a Receivables Subsidiary) to enter into or
assume any agreement (other than any Loan Document), prohibiting the creation or
assumption of any Lien upon its properties, whether now owned or hereafter
acquired; provided, however, that this clause (b) shall not be effective until
such time as the Existing Credit Agreement shall have been terminated or
otherwise ceases to exist; or
(c) Create or otherwise cause or suffer to exist or become effective,
or permit any Subsidiary (other than a Receivables Subsidiary) to create or
otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to: (i)
pay dividends or make any other distribution on any of such Subsidiary's capital
stock owned by the Borrower or any Subsidiary of the Borrower; (ii) pay any
Indebtedness owed to the Borrower or any other Subsidiary; (iii) make loans or
advances to the Borrower or any other Subsidiary; or (iv) transfer any of its
property or assets to the Borrower or any other Subsidiary.
Section 8.5. Restricted Payments.
From and after the "Trigger Date" (as defined in that certain Fifth
Amendment to Amended and Restated Credit Agreement dated as of October 15, 1999
among the Borrower, the Lenders named therein and Bank of America, N.A. (f/k/a
NationsBank, N.A.), as Issuing Bank and Administrative Agent) relating to the
Existing Credit Agreement, declare or make any dividend payment, or make any
other distribution of cash, property or assets, in respect of any of its capital
stock or any warrants, rights or options to acquire its capital stock, or
purchase, redeem, retire or otherwise acquire for value any shares of its
capital stock or any warrants, rights or options to acquire its capital stock,
or set aside funds for any of the foregoing (collectively, "Restricted
Payments") or cause or permit any Subsidiary to do any of the foregoing, except
that the Borrower and its Subsidiaries shall be entitled to make and declare
Restricted Payments if, and to the extent, the Borrower and its Subsidiaries are
permitted to make and declare Restricted Payments under the Existing Credit
Agreement.
Section 8.6. Merger, Consolidation, Sales of Assets and Other
Arrangements.
(a) Enter into, or permit any Subsidiary to enter into, any transaction
of merger or consolidation; (b) liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution) or permit any Subsidiary to do any of the
foregoing; or (c) convey, sell, lease, sublease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business or assets, or the capital stock of or other equity interests in any of
its Subsidiaries, whether now owned or hereafter acquired or permit any
Subsidiary to do any of the foregoing; provided, however, that:
(i) Subsidiaries of the Borrower (other than the Receivables
Subsidiary) may merge or consolidate with other Subsidiaries of the
Borrower; provided further, however, that if the surviving Person of
such merger or consolidation is a Material Subsidiary, such Person
shall execute a Guaranty as provided in Section 6.9.;
(ii) a Subsidiary may sell, transfer or dispose of its assets
to the Borrower or another Subsidiary of the Borrower; provided
further, however, that if such transferee becomes a Material Subsidiary
as a result of such sale, transfer or other disposition, such
transferee (other than a Receivables Subsidiary) shall execute a
Guaranty as provided in Section 6.9.;
(iii) the Borrower or any Subsidiary may sell inventory in the
ordinary course of business;
(iv) the Borrower and its Subsidiaries may sell property in
transactions permitted under Section 8.7.;
(v) the Borrower and its Subsidiaries may, during the period
this Agreement is in effect, sell, transfer or dispose of up to 15%
(determined on a consolidated basis) of the book value of their
respective assets (including the capital stock of any Subsidiary);
provided, however, that sales, transfers or dispositions of assets
already permitted by subparagraphs (ii), (iii) and (iv) shall not count
against such 15% test;
(vi) the Receivables Subsidiary may sell or otherwise transfer
accounts receivable (and related general intangibles) to another Person
under or pursuant to a Permitted Receivables Facility; and
(vii) the Borrower may merge or consolidate with any other
corporation, provided that (A) the Borrower shall be the continuing or
surviving corporation; (B) immediately prior to such merger or
consolidation and immediately after such merger or consolidation and
after giving effect thereto, no Default or Event of Default is or would
be in existence; and (C) the line or lines business conducted by the
Person merging into the Borrower shall be similar to or consistent with
the line or lines of business conducted by the Borrower, as reasonably
determined by the Administrative Agent and the Requisite Lenders; (D)
the Board of Directors (or other similar management body) of the Person
to be merged or consolidated with or into the Borrower recommends to
its shareholders (or other similar equity holders) that such
shareholders (or other similar equity holders) approve such merger or
consolidation; and (E) immediately after giving effect to such merger
or consolidation, the Borrower would, on a pro forma basis, be in
compliance with the financial covenants set forth in Section 8.1.;
provided, further, that, in the event the fair market value of the
assets of the Person to be merged or consolidated with or into the
Borrower exceeds $100,000,000, the Borrower shall provide the
Administrative Agent, at the time of such merger or consolidation, a
certificate executed by the chief financial officer of the Borrower
certifying that each of the foregoing conditions in this clause (viii)
have been satisfied.
Section 8.7. Sale-Leasebacks.
Enter into, or permit any Subsidiary to enter into, any sale and
leaseback transaction covering any fixed or capital property, except for sale
and leaseback transactions which collectively cover property the aggregate fair
market value of which, as determined for each item of property as at the time
such property became the subject of such a transaction, does not exceed 10% of
Consolidated Net Worth, as determined on the date of the most recent sale and
leaseback transaction.
Section 8.8. Transactions with Affiliates.
Enter into, or permit any Subsidiary to enter into, any transaction
including, without limitation, the purchase, sale, leasing or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower or with any officer, director or employee of the Borrower or any
Subsidiary, except (a) the transactions and agreements described on Schedule
5.1.(q) and any renewals, replacements or extensions thereof, (b) that such
Persons may render services to the Borrower or its Subsidiaries for compensation
at the same rates generally paid by Persons engaged in the same or similar
businesses for the same or similar services and (c) in the ordinary course of
and pursuant to the reasonable requirements of the Borrower's (or any
Subsidiary's) business consistent with past practice of the Borrower and its
Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrower (or any Subsidiary) than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate.
Section 8.9. Operating Leases.
Enter into or remain or become liable upon, or permit any Subsidiary to
enter into or remain or become liable upon, any operating lease (other than
intercompany leases between the Borrower and its Subsidiaries) if the aggregate
amount of all rents paid by the Borrower and its Subsidiaries under all such
leases would exceed $100,000,000 in any fiscal year.
Section 8.10. Plans.
Neither Borrower nor any Subsidiary of Borrower shall:
(a) permit the occurrence of any Termination Event which would result
in a liability to any Loan Party or ERISA Affiliate in excess of $10,000,000;
(b) permit the present value of all benefit liabilities under all Plans
to exceed the current value of the assets of such Plans allocable to such
benefit liabilities by more than $10,000,000;
(c) permit any accumulated funding deficiency in excess of $10,000,000
(as defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code) with respect to any Plan, whether or not waived;
(d) fail to make any contribution or payment to any Multiemployer Plan
which any Loan Party or ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto
which results in or is likely to result in a liability in excess of $10,000,000;
(e) engage, or permit any Loan Party or ERISA Affiliate to engage, in
any prohibited transaction under Section 406 of ERISA or Section 4975 of the
Internal Revenue Code for which a civil penalty pursuant to Section 502(i) of
ERISA or a tax pursuant to Section 4975 of the Internal Revenue Code in excess
of $10,000,000 is imposed;
(f) permit the establishment of any Plan providing post-retirement
welfare benefits or establish or amend any Plan which establishment or amendment
could result in liability to any Loan Party or ERISA Affiliate or increase the
obligation of any Loan Party or ERISA Affiliate to a Multiemployer Plan which
liability or increase, individually or together with all similar liabilities and
increases, is material to any Loan Party or ERISA Affiliate; or
(g) fail, or permit any Loan Party or ERISA Affiliate to fail, to
establish, maintain and operate each Plan in compliance in all material respects
with the provisions of ERISA, the Internal Revenue Code and all other applicable
laws and the regulations and interpretations thereof.
Section 8.11. Fiscal Year.
Change its fiscal year from that in effect as of the Agreement Date.
Section 8.12. Margin Regulations.
Use, or permit any Subsidiary to use, directly or indirectly, the
proceeds of any Loan hereunder for the purpose of purchasing or carrying any
"margin stock" or "margin security" as defined in Regulations U and X (12 C.F.R.
Parts 221 and 224) of the Board of Governors of the Federal Reserve System
(herein called "margin stock") or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry stock or for any
other purpose which might constitute this transaction a "purpose credit" within
the meaning of such Regulations U and X. Further, neither the Borrower nor any
bank acting on its behalf shall take any action which might cause this Agreement
or the Notes to violate Regulations U or X or any other regulation of the Board
of Governors of the Federal Reserve System, as now in effect or as the same may
hereafter be in effect.
ARTICLE 9. DEFAULT
Section 9.1. 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 Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment. (i) The Borrower shall fail to pay when due
(whether upon demand, at maturity, by reason of acceleration or otherwise) the
principal of any of the Loans, (ii) the Borrower shall fail to pay when due any
interest or any of the other Obligations owing by the Borrower under this
Agreement or any other Loan Document and such failure shall continue for a
period of five days or (iii) any other Loan Party shall fail to pay when due any
Obligation owing by such Loan Party under any Loan Document to which it is a
party and such failure shall continue for a period of five days.
(b) Misrepresentations. Any statement, representation or warranty made
or deemed made by or on behalf of the Borrower or any other Loan Party under
this Agreement or under any other Loan Document, or any amendment hereto or
thereto, or in any other writing or statement at any time furnished or made or
deemed made by or on behalf of the Borrower or any other Loan Party to the
Administrative Agent or any Lender, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made.
(c) Default in Performance. (i) The Borrower shall fail to perform or
observe Section 6.8. hereof or any term, covenant, condition or agreement
contained in Article 8. or (ii) the Borrower or any Loan Party shall fail to
perform or observe any term, covenant, condition or agreement contained in this
Agreement or any other Loan Document to which it is a party and not otherwise
mentioned in this Section 9.1. and such failure shall continue for a period of
thirty days after the earlier of (x) the date upon which the Borrower or such
Loan Party obtains knowledge of such failure or (y) the date upon which the
Borrower has received written notice of such failure from the Administrative
Agent sent at the request of any Lender.
(d) Indebtedness Cross-Default. The occurrence of any event specified
in any agreement, note, indenture or other document or instrument evidencing or
relating to any Indebtedness to which the Borrower or any other Loan Party is a
party (other than Indebtedness hereunder or under the other Loan Documents)
having a principal amount of $20,000,000 or more (including, without limitation,
the Existing Credit Agreement) if the effect of such event is to cause, or (with
the giving of any notice or the lapse of time or satisfaction of a condition or
any combination of the foregoing) would permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, such Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise) or otherwise accelerated,
prior to its stated maturity.
(e) Voluntary Bankruptcy Proceeding. The Borrower, any Subsidiary or
any other Loan Party shall: (i) commence a voluntary case under the Bankruptcy
Code of 1978, as amended or other 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 or 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 or consent to any
proceeding or action described in the immediately following subsection; (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; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii)
take any corporate or partnership action for the purpose of effecting any of the
foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower, any Subsidiary or any other Loan Party, in
any court of competent jurisdiction seeking: (i) relief under the Bankruptcy
Code of 1978, as amended or other 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 composition or adjustment of debts;
or (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of such Person, or of all or any substantial part of the assets, domestic
or foreign, of such Person; and such case or other proceeding shall continue and
shall not be discharged or dismissed for a period of thirty days.
(g) Judgment. A final judgment or order for the payment of money in
excess of $10,000,000 in the aggregate (exclusive of judgment amounts to the
extent covered by insurance where the Borrower has submitted a claim and the
insurer has acknowledged liability in respect of such judgment) or in excess of
$25,000,000 in the aggregate (regardless of insurance coverage) or that has a
Material Adverse Effect shall be rendered by a one or more Governmental
Authorities having jurisdiction and such judgment or order shall continue for a
period of thirty days without being stayed or dismissed through appropriate
appellate proceedings.
(h) Attachment. A warrant or writ of attachment or execution or similar
process shall be issued against any property of the Borrower, a Subsidiary or
any Loan Party which exceeds, individually or together with all other such
warrants, writs and processes, $10,000,000 in amount and such warrant, writ or
process shall not be discharged, vacated, stayed or bonded for a period of 30
days; provided, however, that in the event a bond has been issued in favor of
the claimant or other Person obtaining such attachment or writ, the issuer of
such bond shall execute a waiver or subordination agreement in form and
substance satisfactory to the Administrative Agent pursuant to which the issuer
of such bond subordinates its right of reimbursement, contribution or
subrogation to the Obligations and waives or subordinates any Lien it may have
on the assets of any Loan Party.
(i) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
(j) Change of Control/Change in Management. (i) If any Person (or two
or more Persons acting in concert) shall acquire "beneficial ownership" within
the meaning of Rule 13d-3 of the Securities and Exchange Act of 1934, as
amended, directly or indirectly, capital stock or securities of the Borrower
representing 20% or more of the aggregate voting power of all classes of capital
stock and securities of the Borrower entitled to vote for the election of
directors or (ii) during any twelve-month period (commencing both before and
after the Agreement Date), individuals who at the beginning of such period were
directors of the Borrower shall cease for any reason (other than death or mental
or physical disability) to constitute a majority of the board of directors of
the Borrower.
(k) Injunction. The Borrower or any of its Subsidiaries is enjoined,
restrained or in any way prevented by the order of any Governmental Authority
from conducting all or any material part of its business and such order
continues for more than thirty days.
(l) Default Under Hedging Obligations. The failure of the Borrower or
its Subsidiaries to pay or perform when due any Hedging Obligations and the
continuance of such failure for a period of ten days after receipt of a notice
of such failure from the Person to whom such Hedging Obligations are owed.
(m) Permitted Receivables Facility. There shall occur any event which
shall permit or require the Person(s) purchasing, or financing the purchase of,
the accounts receivable of the Borrower and/or its Subsidiaries under the
Permitted Receivables Facility to cease to purchase or finance such accounts
receivable, other than by reason of the occurrence of the stated expiry date of
the Permitted Receivables Facility; provided, that any notices or cure periods
that are conditions to the rights of such Persons to cease purchasing, or
financing the purchase of, such accounts receivable have been given or have
expired, as the case may be.
Section 9.2. Remedies.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Sections 9.1.(e) or 9.1.(f), (A)(1) the principal of, and
all accrued interest on, the Loans and the Notes at the time
outstanding; and (2) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders
and the Administrative Agent under this Agreement or any of the other
Loan Documents shall become immediately and automatically due and
payable by the Borrower without presentment, demand, protest, or other
notice of any kind, all of which are expressly waived by the Borrower
and (B) the Commitments and the Revolving Credit Facility shall
immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, the Requisite Lenders may direct the
Administrative Agent to, and the Administrative Agent if so directed
shall: (A) declare (1) the principal of, and accrued interest on, the
Loans and the Notes at the time outstanding; and (2) all of the other
Obligations, including, but not limited to, the other amounts owed to
the Lenders and the Administrative Agent under this Agreement, the
Notes or any of the other Loan Documents to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by the Borrower and (B) terminate the
Commitments and the Revolving Credit Facility.
(b) Loan Documents. The Requisite Lenders may direct the Administrative
Agent to, and, subject to the terms hereof, the Administrative Agent if so
directed shall, exercise any and all of its rights under any and all of the
other Loan Documents.
(c) Applicable Law. The Administrative Agent may, at the direction of
the Requisite Lenders, exercise all other rights and remedies it may have under
any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Lenders shall be entitled to the appointment of a receiver for the assets
and properties of the Borrower and its Subsidiaries, without notice of any kind
whatsoever and without regard to the adequacy of any security for the
Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the Collateral and/or the business
operations of the Borrower and its Subsidiaries and to exercise such power as
the court shall confer upon such receiver.
Section 9.3. Rights Cumulative.
The rights and remedies of the Administrative Agent and the Lenders
under this Agreement and each of the other Loan Documents shall be cumulative
and not exclusive of any rights or remedies which any of them may otherwise have
under Applicable Law. In exercising their respective rights and remedies the
Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative Agent or any of the Lenders 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.
If at any time after acceleration of the maturity of the Loans, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Defaults (other than nonpayment of principal of and accrued interest
on the Loans and other Obligations due and payable solely by virtue of
acceleration) shall be remedied or waived, then by written notice to the
Borrower, the Requisite Lenders may elect, in the sole discretion of such
Requisite Lenders, to rescind and annul the acceleration and its consequences;
but such action shall not affect any subsequent Default or Event of Default or
impair any right or remedy consequent thereon. The provisions of the preceding
sentence are intended merely to bind the Lenders to a decision which may be made
at the election of the Requisite Lenders; they are not intended to benefit the
Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are satisfied.
ARTICLE 10. THE AGENT
Section 10.1. Authorization and Action.
Each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as agent on such Lender's behalf under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Administrative Agent by the terms hereof and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The power of attorney set forth hereinabove shall be
irrevocable and coupled with an interest. The relationship between the
Administrative Agent and the Lenders shall be that of principal and agent only
and nothing herein shall be construed to deem the Administrative Agent a trustee
or fiduciary for any Lender nor to impose on the Administrative Agent duties or
obligations other than those expressly provided for herein. At the request of a
Lender, the Administrative Agent will forward to each Lender copies or, where
appropriate, originals of the documents delivered to the Administrative Agent
pursuant to this Agreement or the other Loan Documents. The Administrative Agent
will also furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Administrative Agent by the Borrower, any
Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or
any other Loan Document not already delivered to such Lender pursuant to the
terms of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite
Lenders, and such instructions shall be binding upon all Lenders and all holders
of any of the Obligations; provided, however, that, notwithstanding anything in
this Agreement to the contrary, the Administrative Agent shall not be required
to take any action which exposes the Administrative Agent to personal liability
or which is contrary to this Agreement or any other Loan Document or Applicable
Law or unless it shall first 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 any such action. Not in limitation of the foregoing, the
Administrative Agent shall not exercise any right or remedy it or the Lenders
may have under any Loan Document upon the occurrence of a Default or an Event of
Default unless the Requisite Lenders have so directed the Administrative Agent
to exercise such right or remedy.
Section 10.2. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors, officers,
agents, employees or counsel shall be liable for any action taken or omitted to
be taken by it or any of them under or in connection with this Agreement, except
for its or their own gross negligence or willful misconduct. The Administrative
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
the Administrative Agent with reasonable care. Without limiting the generality
of the foregoing, the Administrative Agent: (a) may deem and treat the payee of
any Note as the holder thereof for all purposes until the Administrative Agent
receives and accepts an Assignment Agreement executed in accordance with Section
11.5.; (b) may consult with and rely upon legal counsel (including its own
counsel or counsel for the Borrower or any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender or any other Person and shall not be responsible to
any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement or any other Loan
Document; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any of
this Agreement or any other Loan Document or the satisfaction of any conditions
precedent under this Agreement or any Loan Document on the part of the Borrower
or other Persons or inspect the property, books or records of the Borrower or
any other Person; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Loan Document, any other instrument or document
furnished pursuant thereto or any Collateral covered thereby or the perfection
or priority of any Lien in favor of the Administrative Agent on behalf of the
Lenders in any such Collateral; and (f) shall incur no liability under or in
respect of this Agreement or any other Loan Document by acting upon (and shall
be entitled to rely upon) any notice, consent, certificate, instrument, writing
or other communication (which may be by telephone or telecopy) believed by it to
be genuine and correct and signed, sent or given by or on behalf of the proper
Person or Persons.
Section 10.3. Bank of America as Lender.
Bank of America, as a Lender, shall have the same rights and powers
under this Agreement and any other Loan Document as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include Bank
of America in each case in its individual capacity. Bank of America and its
Affiliates may each accept deposits from, maintain deposits or credit balances
for, invest in, provide services to, lend money or otherwise provide credit to,
act as trustee under indentures of, serve as financial advisor to, and generally
engage in any kind of business with the Borrower, any Loan Party or any other
Affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Administrative Agent and any
Affiliate may accept fees and other consideration from the Borrower for services
in connection with this Agreement and otherwise without having to account for
the same to the other Lenders.
Section 10.4. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Administrative
Agent, the Arranger, nor any of their respective officers, directors, employees,
agents, counsel, attorneys-in-fact or other affiliates has made any
representations or warranties as to the financial condition, operations,
creditworthiness, solvency or other information concerning the business or
affairs of the Borrower, any Loan Party, any Subsidiary or other Person to such
Lender and that no act by the Administrative Agent or the Arranger hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any such representation or warranty by the Administrative Agent or
the Arranger to any Lender. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Arranger, any other
Lender or counsel to the Administrative Agent, or any of their respective
officers, directors, employees and agents, and based on the financial statements
of the Borrower, the Subsidiaries, the other Loan Parties or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Borrower, the other Loan Parties, the Subsidiaries
and other Persons, its review of the Loan Documents, the legal opinions required
to be delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the transaction
contemplated hereby. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger, any other
Lender or counsel to the Administrative Agent or any of their respective
officers, directors, employees and agents, and based on such review, advice,
documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under the Loan Documents.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall have no 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, any
Loan Party or any other Affiliate thereof which may come into possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or other affiliates.
Section 10.5. Knowledge of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the
Administrative Agent has received written notice from a Lender or the Borrower
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives such a
notice of the occurrence of a Default or Event of Default, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Sections 10.1. and 10.2. hereof) take such action with respect
to such Default or Event of Default as shall reasonably be directed by the
Requisite Lenders; provided, that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as the Administrative Agent shall
deem advisable in the best interest of the Lenders.
Section 10.6. Indemnification.
Each Lender agrees to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so) pro rata in accordance with such Lender's respective Credit
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
attorneys' fees) or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against the Administrative
Agent (including by any Lender) in any way relating to or arising out of the
Loan Documents, the transactions contemplated thereby or any action taken or
omitted by the Administrative Agent under the Loan Documents; provided, however,
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, each Lender agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including fees
of the counsel(s) of the Administrative Agent's own choosing) incurred by the
Administrative Agent in connection with the preparation, execution,
administration, or enforcement of, or legal advice with respect to the rights or
responsibilities of the parties under, the Loan Documents, any suit or action
brought by the Administrative Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Administrative Agent and/or the Lenders, and any claim or suit
brought against the Administrative Agent and/or the Lenders arising under any
Environmental Laws, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower. Such out-of-pocket expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent will
reimburse the Lenders if it is actually and finally determined by a court of
competent jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder or under the other Loan Documents
and the termination of this Agreement.
Section 10.7. Successor Administrative Agent.
The Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Requisite Lenders shall have the right,
with the consent of the Borrower, such consent not to be unreasonably withheld,
to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Requisite Lenders and the Borrower,
and shall have accepted such appointment, within thirty days after the
Administrative Agent's giving of notice of resignation, then the resigning
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America having combined capital and unimpaired surplus
in excess of $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor agent, such successor agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the former Administrative Agent, and the former Administrative
Agent shall be discharged from its duties and obligations under the Loan
Documents. After any Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents.
ARTICLE 11. MISCELLANEOUS
Section 11.1. Notices.
Unless otherwise provided herein, all notices, requests and other
communications provided for hereunder shall be in writing (including without
limitation, by telecopy) and shall be mailed, telecopied or delivered as
follows:
If to the Borrower:
Shaw Industries, Inc.
Post Office Drawer 2128
Dalton, Georgia 30722-2128
Attention: Kenneth G. Jackson
Telecopy Number: (706) 275-1985
Telephone Number: (706) 275-1010
with a copy to:
Shaw Industries, Inc.
Mail Drop 061-18
Post Office Drawer 2128
Dalton, Georgia 30722-2128
Telecopy Number: (706) 275-1442
Telephone Number: (706) 275-1018
If to the Administrative Agent or Bank of America:
Bank of America, N.A.
100 North Tryon Street, 17th Floor
Charlotte, North Carolina 28255
Attention: Leesa C. Sluder
Telecopy Number: (704) 386-1270
Telephone Number: (704) 388-8330
with a copy to:
Bank of America, N.A.
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Agency Services
Telecopy Number: (704) 388-1108
Telephone Number: (704) 409-0028
with a copy to:
Alston & Bird LLP
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Rick D. Blumen, Esq.
Telecopy number: (404) 881-4777
Telephone number: (404) 881-7895
If to a Lender, to such Lender's address or telecopy number, as
applicable, set forth on the then current Annex I attached hereto.
or as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices, requests and other communications shall be effective
(a) if mailed, when received; (b) if telecopied, when transmitted; or (c) if
hand delivered, when delivered. Notwithstanding the immediately preceding
sentence, all notices or communications to the Administrative Agent or any
Lender under Articles 2. shall be effective only when actually received.
Section 11.2. Expenses.
The Borrower agrees to pay on demand all costs and expenses of the
Administrative Agent in connection with the syndication, negotiation,
preparation, execution, delivery and administration (including out-of-pocket
costs and expenses incurred in connection with the assignment of Commitments
pursuant to Section 11.5.) of this Agreement, the Notes and each of the other
Loan Documents, whenever the same shall be executed and delivered, including the
fees and disbursements of counsel retained by the Administrative Agent (and the
cost of internal counsel). Further, the Borrower agrees to pay on demand all
future costs and expenses of the Administrative Agent and each of the Lenders
(including, without limitation, the fees and disbursements of counsel to the
Administrative Agent and the Lenders and the cost of their internal counsel) in
connection with: (a) the negotiation, preparation, execution and delivery of any
waiver, amendment or consent by the Administrative Agent or any Lender relating
to this Agreement, the Notes or any of the other Loan Documents; (b) any
restructuring, refinancing or "workout" of the transactions contemplated by this
Agreement, the Notes and the other Loan Documents, or any material amendment to
the terms of this Agreement or any other Loan Document; (c) consulting with one
or more Persons engaged by the Administrative Agent, including appraisers,
accountants and lawyers, concerning or related to the servicing of this
Agreement or the nature, scope or value of any right or remedy of the
Administrative Agent or any of the Lenders hereunder, under the Notes or under
any of the other Loan Documents, including any review of factual matters in
connection therewith; (d) the collection or enforcement of the Obligations; (e)
prosecuting or defending any claim in any way arising out of, related to, or
connected with this Agreement, the Notes or any of the other Loan Documents; (f)
the exercise by the Administrative Agent or any Lender of any right or remedy
granted to it under this Agreement, the Notes or any of the other Loan
Documents; and (g) to the extent not already covered by any of the preceding
subsections, any bankruptcy or other proceeding of the type described in
Sections 9.1.(e) or 9.1.(f), and the fees and disbursements of counsel to the
Administrative Agent and any Lender incurred in connection with the
representation of the Administrative Agent or such Lender in any matter relating
to or arising out of any such proceeding including, without limitation (i) any
motion for relief from any stay or similar order, (ii) the negotiation,
preparation, execution and delivery of any document relating to the Obligations
and (iii) the negotiation and preparation of any debtor-in-possession financing
or any plan of reorganization of the Borrower, whether proposed by the Borrower,
the Lenders or any other Person, and whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.
Section 11.3. Setoff.
Subject to Section 3.13. and in addition to, and not in limitation of,
any rights now or hereafter granted under Applicable Law, the Administrative
Agent and each Lender is 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 the Administrative Agent
or such Lender or any affiliate of such Lender, to or for the credit or the
account of the Borrower against and on account of any of the Obligations,
irrespective of whether or not the Requisite Lenders shall have declared any or
all of the Loans and all other Obligations to be due and payable as permitted by
Section 9.2., and although such obligations shall be contingent or unmatured.
Section 11.4. Litigation/Jurisdiction/Other Matters/Waivers.
EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE
BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT. ACCORDINGLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE
AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER EACH HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE FEDERAL DISTRICT COURT OF THE NORTHERN
DISTRICT OF GEORGIA AND ANY STATE COURT LOCATED IN FULTON COUNTY, GEORGIA FOR
THE PURPOSE OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY HERETO WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH PROCEEDING IN ANY SUCH COURT OR THAT SUCH PROCEEDING WAS BROUGHT IN
AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE
OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING
OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY
THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION. THE FOREGOING WAIVERS HAVE BEEN MADE WITH
THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES
THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER OBLIGATIONS
AND THE TERMINATION OF THIS AGREEMENT.
Section 11.5. Assignability and Participations.
(a) The Borrower shall not have the right to assign this Agreement or
any interest therein or obligations hereunder except with the prior written
consent of the Administrative Agent and all of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Loans, its Note and its Commitment);
provided, however, that (i) each such assignment shall be to an Eligible
Assignee; (ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, any
such partial assignment shall, unless the Borrower and the Administrative Agent
otherwise agree, be in an amount at least equal to $10,000,000 or an integral
multiple of $1,000,000 in excess thereof; (iii) each such assignment by a Lender
shall be of a constant (and not a varying) percentage of all of its rights and
obligations under this Agreement and the other Loan Documents; and (iv) each
such assignment shall be effected by means of an Assignment and Assumption
Agreement substantially in the form of Exhibit G (an "Assignment Agreement")
executed by the parties and delivered to the Administrative Agent for its
acceptance, together with any Note subject to such assignment and a processing
fee of $3,500. Upon the execution, delivery and acceptance of the Assignment
Agreement as provided therein, from and after the date specified as the
effective date in the Assignment Agreement (the "Acceptance Date"), (x) the
assignee thereunder shall be deemed to be a party hereto, and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, such assignee shall have the rights and obligations of a
"Lender" hereunder and (y) the assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights (other than any rights it may have
pursuant to Sections 3.2., 3.21., 11.2., and 11.9. which will survive such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment Agreement covering all of an assigning Lender's rights
and obligations under this Agreement, the Notes and the other Loan Documents,
such Lender shall cease to be a party hereto). If the assignee is not
incorporated under the laws of the United States of America or a State thereof,
it shall deliver to the Borrower and the Administrative Agent certification as
to exemption from deduction or withholding of Taxes in accordance with Section
3.21.
(d) The Administrative Agent shall maintain at the Principal Office a
copy of each Assignment Agreement delivered to and accepted by it and a register
for the recording of the names and addresses of the Lenders and the Commitments
of, and principal amounts of the Loans owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Administrative
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
and copies of each Assignment Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Administrative Agent.
(e) Upon its receipt of an Assignment Agreement executed by an
assigning Lender, together with the Syndicate Note subject to such assignment
(the "Surrendered Note"), the Administrative Agent shall, if such Assignment
Agreement has been completed and the Administrative Agent receives the
processing and recording fee described in the immediately preceding subsection
(c), (i) accept such Assignment Agreement, (ii) record the information contained
therein in the Register, (iii) give prompt notice thereof to the parties thereto
and (iv) revise the information set forth on Annex I to reflect the effect of
such Assignment Agreement and promptly provide a copy of such revised Annex I to
the Borrower. Failure of the Administrative Agent to so distribute a revised
Annex I shall not relieve or modify the obligations of the Borrower, the Loan
Parties or the Lenders owing hereunder. Within five Business Days after its
receipt of such notice, the Borrower shall acknowledge such Assignment Agreement
and shall execute and deliver to the Administrative Agent in exchange for the
Surrendered Note, a new Syndicate Note or Notes to the order of the assignee in
an amount equal to the Commitment assumed by it pursuant to such Assignment
Agreement and, if the assigning Lender has retained a Commitment hereunder, a
new Syndicate Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall
re-evidence the indebtedness outstanding under the old Note or Notes and shall
be in an aggregate principal amount equal to the aggregate principal amount of
such Surrendered Note or Surrendered Notes, shall be dated the Acceptance Date
and shall otherwise be in substantially the form, of the Note or Notes subject
to such assignments. The assignment by a Lender of a Commitment or portion
thereof to another Person and the execution and delivery of a new Note or Notes
shall not constitute a novation of the indebtedness evidenced by the Surrendered
Note or Surrendered Notes and incurred in connection with such assigned
Commitment.
(f) Each Lender may sell participations (without the consent of the
Administrative Agent, the Borrower or any other Lender) to one or more Persons
(each a "Participant") in all or a portion of its rights, obligations or rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Loans owing to it and the Note or Notes held by
it); provided, however, that: (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the Participant shall be
entitled to the benefit of the yield protection provisions contained in Sections
3.17. and 3.21. and the right of set-off contained in Section 11.3.; (iv) the
Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to its Loans and its Note(s) and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Note(s), extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note(s) or extending its Commitment).
(g) In connection with the efforts of any Lender to assign its rights
or obligations or to participate interests, such Lender may disclose any
information in its possession regarding the Borrower or any Loan Party.
(h) In addition to the other assignments and participations permitted
under the foregoing provisions of this Section, any Lender may assign and pledge
all or any portion of its Loans and its Note(s) to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Note(s) shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
Section 11.6. Amendments.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or in any Loan Document to
be given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Borrower or any Loan Party or Subsidiary of any terms of this Agreement or such
other Loan Document or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders, do any of the
following: (i) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations; (ii) reduce the principal of, or interest rates that
have accrued or that will be charged on the outstanding principal amount of, any
Loans or other Obligations; (iii) reduce the amount of any Fees payable
hereunder; (iv) postpone any date fixed to any payment of any principal of,
interest on, or Fees with respect to, any Loans or any other Obligations; (v)
change the Credit Percentages (or any minimum requirement necessary for the
Lenders or Requisite Lenders to take action hereunder); or (vi) amend this
Section or amend the definitions of the terms used in this Agreement or the
other Loan Documents insofar as such definitions affect the substance of this
Section. Further, no amendment, waiver or consent unless in writing and signed
by the Administrative Agent, in addition to the Lenders required hereinabove to
take such action, shall affect the rights or duties of the Administrative Agent
under this Agreement or any of the other Loan Documents. No waiver shall extend
to or affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of any Lender or the Administrative
Agent in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances. Notwithstanding any of the foregoing to the contrary, the consent
of the Borrower shall not be required for any amendment, modification or waiver
of the provisions of Article 10. (other than the provisions of Section 10.7.).
In addition, the Borrower and the Lenders hereby authorize the Administrative
Agent to modify this Agreement by unilaterally amending or supplementing Annex I
from time to time in the manner requested by the Borrower, the Administrative
Agent or any Lender in order to reflect any assignments or transfers of the
Commitments as provided for hereunder; provided, however, that the
Administrative Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender as requested by such party.
Section 11.7. Nonliability of Administrative Agent, Documentation
Agent, Arranger and Lenders.
The relationship between the Borrower and the Lenders shall be solely
that of borrower and lender. Neither the Administrative Agent, the Arranger, the
Documentation Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower. Neither the Administrative Agent, the Arranger, the Documentation
Agent nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower's
business or operations. Without limiting any of the provisions in this Section
and/or Sections 11.17. and 11.18., the parties hereto acknowledge and agree that
the Arranger and the Documentation Agent shall have no obligations, duties or
liabilities under this Agreement or the other Loan Documents.
Section 11.8. Information.
Except as otherwise provided by Applicable Law, the Administrative
Agent and each Lender shall utilize all non-public information obtained pursuant
to the requirements of this Agreement which has been identified as confidential
or proprietary by the Borrower in accordance with customary procedure of the
Administrative Agent or such Lender, as the case may be, for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event the Administrative Agent and the Lenders may
make disclosure: (a) to any of their respective affiliates (provided such
affiliates shall agree to keep such information confidential in accordance with
the terms of this Section); (b) as reasonably required by any bona fide
transferee or participant in connection with the contemplated transfer of any
Commitment or participations therein as permitted hereunder; (c) as required by
any Governmental Authority or representative thereof or pursuant to legal
process; (d) to the Administrative Agent's or such Lender's independent auditors
and other professional advisors (provided they shall be notified of the
confidential nature of the information); and (e) after the happening and during
the continuance of an Event of Default, to any other Person, in connection with
the exercise of the Lender's rights hereunder or under any of the other Loan
Documents.
Section 11.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent, the Arranger, the Documentation Agent, any
affiliate of the foregoing Persons and each of the Lenders and their respective
directors, officers, shareholders, agents, employees and counsel (each referred
to herein as an "Indemnified Party") from and against any and all losses,
claims, damages, liabilities, deficiencies, judgments, costs and expenses of
every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith) (the foregoing items referred to herein as
"Claims and Expenses") that may be incurred by or asserted or awarded against an
Indemnified Party, in each case arising out of or by reason of any suit, cause
of action, claim, arbitration, investigation or settlement, consent decree or
other proceeding (the foregoing referred to herein as an "Indemnity Proceeding")
which arise out of, or are in any way related directly or indirectly to: (i)
this Agreement or any other Loan Document or the transactions contemplated
thereby; (ii) the making of any Loans hereunder; (iii) any actual or proposed
use by the Borrower of the proceeds of the Loans; (iv) the Administrative
Agent's, the Documentation Agent's or any Lender's entering into this Agreement;
(v) the fact that the Administrative Agent and the Lenders have established the
credit facility evidenced hereby in favor of the Borrower and the Subsidiaries;
(vi) the fact that the Administrative Agent and the Lenders are creditors of the
Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Borrower and the
Subsidiaries; (vii) the fact that the Administrative Agent and the Lenders are
material creditors of the Borrower and the Subsidiaries and are alleged to
influence directly or indirectly the business decisions or affairs of the
Borrower and the Subsidiaries or their financial condition; (viii) the exercise
of any right or remedy the Administrative Agent or the Lenders may have under
this Agreement or the other Loan Documents including, but not limited to, the
foreclosure upon, or seizure of, any Collateral or the exercise of any other
rights of a secured party; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for any acts or omissions of such
Indemnified Party in connection with matters described in this subparagraph
(viii) that are found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct; (ix) any violation or non-compliance by the
Borrower or any Subsidiary of any Applicable Law (including any Environmental
Law) including, but not limited to, any Indemnity Proceeding commenced by the
Internal Revenue Service or state taxing authority or any Indemnity Proceeding
commenced by any Governmental Authority or other Person under any Environmental
Law including any Indemnity Proceeding commenced by a Governmental Authority or
other Person seeking remedial or other action to cause the Borrower or its
Subsidiaries (or its respective properties) (or the Administrative Agent and/or
the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws.
(b) This indemnification shall apply to all Indemnity Proceedings
arising out of, or related to, the foregoing whether or not an Indemnified Party
is a named party in such Indemnity Proceeding. In this connection, this
indemnification shall cover all costs and expenses of any Indemnified Party in
connection with any deposition of any Indemnified Party or compliance with any
subpoena (including any subpoena requesting the production of documents). This
indemnification shall, among other things, apply to any Indemnity Proceeding
commenced by the Borrower, other creditors of the Borrower or any Subsidiary,
any shareholder or director of the Borrower or any Subsidiary (whether such
shareholder(s) or director(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority or any
other Person and whether or not the transactions contemplated hereby are
consummated.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may engage its own counsel and conduct its own
investigation and defense of, and may formulate its own strategy with respect
to, any Indemnified Proceeding covered by this Section and, as provided above,
all costs and expenses incurred by the Indemnified Party shall be reimbursed by
the Borrower; provided, however, that the Borrower shall not be liable for the
fees and disbursements of more than one separate firm for all Indemnified
Parties hereunder in connection with any one Indemnity Proceeding or separate
but substantially similar Indemnity Proceeding(s) in the same jurisdiction;
provided further, however, that if (i) the engagement of a single counsel would
present a conflict of interest which would prevent such counsel from effectively
defending such action on behalf of the Indemnified Parties or (ii) Indemnified
Party reasonably concludes that there may be legal defenses available to it that
are different from or in addition to those available to any other Indemnified
Party, then the Indemnified Parties or any one of them may employ separate
counsel to represent or defend them or it in any such action or proceeding and
the Borrower shall pay the fees and disbursements of such counsel. No action
taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii)
the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnified Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnified Proceeding without the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Agreement.
Section 11.10. Survival.
Notwithstanding any termination of this Agreement, or of the other Loan
Documents, the indemnities and other reimbursement obligations to which the
Administrative Agent, the Documentation Agent and the Lenders are entitled under
the provisions of Sections 3.2., 3.21., 11.2., and 11.9. and any other provision
of this Agreement and the other Loan Documents, the waivers of jury trial and
submissions to jurisdiction contained in Section 11.4., shall continue in full
force and effect and shall protect the Administrative Agent, the Documentation
Agent and the Lenders against events arising after such termination as well as
before.
Section 11.11. Titles and Captions.
Titles and captions of Articles, Sections, subsections and clauses in
this Agreement are for convenience only, and neither limit nor amplify the
provisions of this Agreement. Except as expressly provided for herein
(including, without limitation, the indemnities and limitations on liability set
forth in Sections 11.9. and 11.18.), neither the Documentation Agent nor the
Arranger shall have any right or benefit under this Agreement or the other Loan
Documents.
Section 11.12. Severability of Provisions.
Any provision of this Agreement 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 or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 11.13. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA.
Section 11.14. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto.
Section 11.15. Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
Section 11.16. Independent Nature of Lenders' Rights.
Nothing contained in any Loan Document and no action taken by
Administrative Agent or any Lender or the Borrower or any Loan Party pursuant
hereto or thereto shall be deemed to constitute Lenders and/or the
Administrative Agent and/or any Loan Party to be a partnership, an association,
a joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
Section 11.17. No Fiduciary Relationship.
No provision in this Agreement or in any of the other Loan Documents
and no course of dealing between the parties shall be deemed to create any
fiduciary duty (a) by the Administrative Agent or any Lender to the Borrower or
any other Loan Party or (b) by the Administrative Agent to any Lender.
Section 11.18. Limitation of Liability.
Neither the Administrative Agent, the Documentation Agent, the
Arranger, any Lender, any affiliate, officer, director, employee, attorney, or
agent of such Persons shall have any liability with respect to, and the Borrower
hereby waives, releases, and agrees not to sue any of them upon, any claim for
any special, indirect, incidental, or consequential damages suffered or incurred
by the Borrower in connection with, arising out of, or in any way related to,
this Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases, and agrees not to sue the Administrative Agent, the
Documentation Agent, the Arranger, or any Lender or any of their respective
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
Section 11.19. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto and supersede
any and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.
Section 11.20. Construction.
The Administrative Agent, the Borrower and each Lender acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Administrative Agent, the
Borrower and each Lender.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
THE BORROWER:
SHAW INDUSTRIES, INC.
By:
Title:
THE ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By:
Title:
THE DOCUMENTATION AGENT:
SUNTRUST BANK, ATLANTA
By:
Title:
<PAGE>
[Signature Page to Shaw Credit Agreement dated as of November 5, 1999]
THE LENDERS:
BANK OF AMERICA, N.A.
By:
Title:
SUNTRUST BANK, ATLANTA
By:
Title:
FIRST UNION NATIONAL BANK
By:
Title:
BANK ONE, NA
By:
Title:
<PAGE>
[Signature Page to Shaw Credit Agreement dated as of November 5, 1999]
CHASE BANK OF TEXAS, N.A.
By: ____________________________________________
Title: ____________________________________
ABN AMRO BANK N.V.
By: ____________________________________________
Title: ____________________________________
By: ____________________________________________
Title: ____________________________________
<PAGE>
Annex I-4
ANNEX I TO CREDIT AGREEMENT
LIST OF LENDERS, COMMITMENTS, CREDIT
PERCENTAGES AND LENDING OFFICES
Administrative Agent:
Bank of America, N.A.
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Ret Taylor, Agency Services
Telecopy Number: (704) 409-0012
Telephone Number: (704) 386-9368
Wiring Instructions for Disbursements and Payments of Loans:
Bank of America, N.A.
Charlotte, North Carolina
ABA #053000196
Account #1366212250600
Attn: Credit Services/Agency Services
Reference: Shaw Industries, Inc.
Lenders:
Bank of America, N.A.
Lending Office (All Types of Loans): Initial Commitment Amount:
100 North Tryon Street, 17th Floor $30,000,000.00
Charlotte, North Carolina 28255
Attn: Leesa C. Sluder Initial Credit Percentage: 15%
Telecopier: (704) 386-1270
Telephone: (704) 388-8330
Wiring Instructions: Same as above
<PAGE>
SunTrust Bank, Atlanta
Lending Office (All Types of Loans): Initial Commitment Amount:
303 Peachtree Street $30,000,000.00
3rd Floor
Atlanta, Georgia 30308 Initial Credit Percentage: 15%
Attn: Bradley J. Staples
Telecopier: (404) 575-2594
Telephone: (404) 230-5099
Wiring Instructions:
SunTrust Bank, Atlanta, Georgia
ABA #061000104
Account #9088000112 - Wire Clearing
Attn: Corporate Bank Operations Support,
Patricia Ransom
Reference: Shaw Industries, Inc.
First Union National Bank
Lending Office (All Types of Loans): Initial Commitment Amount:
999 Peachtree Street, Suite 900 $30,000,000.00
Atlanta, Georgia 30309
Attn: Donald Dalton Initial Credit Percentage: 15%
Telecopier: (404) 225-4255
Telephone: (404) 225-4004
Wiring Instructions:
First Union National Bank
ABA #053-000-219
Account #465906-0001805 General Ledger
Reference: Shaw Industries, Inc.
Attention: Callie Moses
<PAGE>
Bank One, NA
Lending Office (All Types of Loans): Initial Commitment Amount:
1 Bank One Plaza $50,000,000.00
Suite 0324
Chicago, Illinois 60670 Initial Credit Percentage: 25%
Attn: Kimberly A. Striegl
Telecopier: (312) 732-2991
Telephone: (312) 732-4262
Wiring Instructions:
The First National Bank of Chicago
ABA #071000013
A/C # 4811-5286-00000
A/C Name: Loan Processing DP
Reference: Shaw Industries, Inc.
Attn: Kathy Murphy
Chase Bank of Texas, N.A.
Lending Office (All Types of Loans): Initial Commitment Amount:
712 Main Street, 5-CBBE-78 $30,000,000.00
Houston, Texas 77002
Attention: James R. Dolphin Initial Credit Percentage: 15%
Telecopier: 713/216-6004
Telephone: 713216-5347
Wiring Instructions:
Chase Bank of Texas, N.A.
ABA #1130000609
DDA #00100381673
Reference: Shaw Industries, Inc.
<PAGE>
ABN AMRO Bank N.V.
Lending Office (All Types of Loans): Initial Commitment Amount:
208 South LaSalle Street, Suite 1500 $30,000,000.00
Chicago, Illinois 60604-1003
Attn: Loan Administration Initial Credit Percentage: 15%
Telecopier: 312/992-5157
Telephone: 312/992-5152
Wiring Instructions:
ABN AMRO Bank, N.V.
New York, New York
ABA #026009580
F/O: ABN AMRO Bank N.V. Chicago CPU
Account #650-001-1789-41
Ref: Shaw Industries, Inc.
Total Commitments = $200,000,000
<PAGE>
A-2
EXHIBIT A
FORM OF NOTICE OF SYNDICATE BORROWING
-----------, -----
Bank of America, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Agency Services
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of November
5, 1999 (as it may be amended, modified, restated or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein, and not otherwise
defined herein, shall have their respective defined meanings as set forth in the
Credit Agreement) among Shaw Industries, Inc. (the "Borrower"), the Lenders
named therein (the "Lenders"), Bank of America, N.A., as Administrative Agent
(the "Administrative Agent") and SunTrust Bank, Atlanta, as Documentation Agent.
Pursuant to Section 2.2 of the Credit Agreement, the Borrower hereby
requests a Syndicate Loan Borrowing in an amount equal to $_____________ to the
Borrower.
The Borrower hereby requests that the Syndicate Loan to be made
available by the Lenders pursuant hereto shall be a ___________________ [Select
either a LIBOR Loan or Base Rate Loan]. [In the event the Borrower selects a
LIBOR Loan:] [The Borrower hereby requests that the initial Interest Period for
such Syndicate Loan be for a duration of ______________.]
The Borrower requests that the Syndicate Loan be made available to the
Borrower on __________, _____.
The Administrative Agent is instructed to make the proceeds of such
Syndicate Loan available to the Borrower at -----------------------------------.
The Borrower hereby further certifies that (i) as of the date hereof,
(ii) as of the date of the requested Syndicate Loan Borrowing, and (iii) after
giving effect to the Syndicate Loan requested hereby:
(a) no Event of Default or Default has occurred and is
continuing;
(b) no material adverse change with respect to the Borrower
and its Subsidiaries, taken as a whole, has occurred since the Effective Date;
(c) the representations and warranties set forth in Article 5
of the Credit Agreement remain true and correct on and as of the date hereof
except to the extent that either: (i) such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and accurate on and as of such earlier date)
and (ii) an event or condition has occurred that would render such
representations or warranties untrue but that is specifically and expressly
permitted by the terms of the Credit Agreement;
(d) [there is no pending or threatened suit, cause of action
or proceeding against the Borrower or any Subsidiary thereof that could
reasonably have a Material Adverse Effect on the Borrower and its Subsidiaries,
taken as a whole] or [no event or circumstance has occurred with relation to any
pending suit, action, arbitration, investigation or other proceeding which could
reasonably be expected to have a Material Adverse Effect on the Borrower or any
of its Subsidiaries taken as a whole]; and
(e) the use of the proceeds of such extension of credit shall
not violate any Applicable Law applicable to or binding upon the Borrower or
Section 6.8. of the Credit Agreement.
If notice of this Syndicate Loan Borrowing has been given previously by
telephone, then this notice should be considered a written confirmation of such
telephone notice as required by Section 2.2 of the Credit Agreement.
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
B-2
EXHIBIT B
FORM OF NOTICE OF CONTINUATION
--------------, -----
Bank of America, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Agency Services
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of November
5, 1999 (as it may be amended, modified, restated or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein, and not otherwise
defined herein, shall have their respective defined meanings as set forth in the
Credit Agreement) among Shaw Industries, Inc. (the "Borrower"), the Lenders
named therein, Bank of America, N.A., as Administrative Agent (the
"Administrative Agent") and SunTrust Bank, Atlanta, as Documentation Agent.
Pursuant to Section 2.6.(a) of the Credit Agreement, the Borrower
hereby gives notice, irrevocably, that the Borrower hereby requests a
Continuation of a Syndicate Loan Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Continuation
(the "Proposed Continuation") as required by Section 2.6.(a) of the Credit
Agreement:
(i)______The requested date of the Proposed Continuation is __________,
_____.
(ii)_____The Type of Syndicate Loans to be continued are LIBOR Loans.
(iii)____The aggregate amount of the Syndicate Loans subject to such
Continuation is $________________________.
(iv)_____The duration of the selected Interest Period for the Syndicate
Loans which are the subject of such Continuation is:
- --------------------------.
The Borrower hereby further certifies that (i) as of the date
hereof, (ii) as of the requested date of the Proposed Continuation, and (iii)
after giving effect to the Continuation requested hereby no Default or Event of
Default has occurred and is continuing.
If notice of this Proposed Continuation has been given previously by
telephone, then this notice should be considered a written confirmation of such
telephone notice as required by Section 2.6.(a) of the Credit Agreement.
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
C-2
EXHIBIT C
FORM OF NOTICE OF CONVERSION
------------, -----
Bank of America, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Agency Services
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of November
5, 1999 (as it may be amended, modified, restated or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein, and not otherwise
defined herein, shall have their respective defined meanings as set forth in the
Credit Agreement) among Shaw Industries, Inc. (the "Borrower"), the Lenders
named therein, Bank of America, N.A., as Administrative Agent (the
"Administrative Agent") and SunTrust Bank, Atlanta, as Documentation Agent.
Pursuant to Section 2.6.(b) of the Credit Agreement, the Borrower
hereby gives you notice, irrevocably, that the Borrower hereby requests a
Conversion of Syndicate Loans of one Type into Syndicate Loans of another Type
under the Credit Agreement, and in that connection sets forth below the
information relating to such Conversion (the "Proposed Conversion") as required
by Section 2.6.(b) of the Credit Agreement:
(i)______The requested date of the Proposed Conversion is _____________
(the "Conversion Date").
(ii)_____The Type of Syndicate Loans to be Converted pursuant hereto
are presently ___________________ [Select either a LIBOR Loan or Base Rate Loan]
in the principal amount of $_________ outstanding as of the Conversion Date (the
"Current Loans").
(iii)____The portion of the Current Loans to be converted on the
Conversion Date is $___________ (the "Conversion Amount").
(iv)_____The Conversion Amount is to be converted into a
___________________ [Select either a LIBOR Loan or Base Rate Loan] (the
"Converted Loan") on the Conversion Date.
(v)______[In the event the Borrower selects a LIBOR Loan:] [The
Borrower hereby requests that the Interest Period for such Converted Loan be for
a duration of ______________.]
The Borrower hereby further certifies that (i) as of the date
hereof, (ii) as of the Conversion Date, and (iii) after giving effect to the
Conversion requested hereby no Default or Event of Default has occurred and is
continuing.
If notice of this Proposed Conversion has been given previously by
telephone, then this notice should be considered a written confirmation of such
telephone notice as required by Section 2.6.(b) of the Credit Agreement.
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
D-2
EXHIBIT D
FORM OF SYNDICATE NOTE
$________________ November 5, 1999
FOR VALUE RECEIVED, the undersigned, SHAW INDUSTRIES, INC., a
corporation organized under the laws of the State of Georgia (the "Borrower"),
promises to pay to the order of ___________________ [Payee Lender] (the
"Lender") in c/o Bank of America, N.A., as Administrative Agent, 101 North Tryon
Street, 15th Floor, Charlotte, North Carolina 28255-0001, Attention: Agency
Services, in lawful money of the United States of America and in immediately
available funds, the principal amount of ________________ Dollars
($_____________), or such lesser principal amount, as may then constitute the
unpaid aggregate principal amount of the Syndicate Loans made by the Lender to
the Borrower pursuant to the Credit Agreement (as defined below) on the
Termination Date.
The Borrower further agrees to pay interest at said office, in like
money, on the unpaid principal amount owing hereunder from time to time on the
dates and at the rates and at the times specified in Section 3.5. of the Credit
Agreement.
If any payment on this Note becomes due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is one of the Syndicate Notes referred to in that certain
Credit Agreement dated as of November 5, 1999 (as it may be amended, modified,
restated or supplemented from time to time, the "Credit Agreement") among the
Borrower, the Lenders named therein (the "Lenders"), Bank of America, N.A., as
Administrative Agent (the "Administrative Agent") and SunTrust Bank, Atlanta, as
Documentation Agent, and is subject to, and entitled to, all provisions and
benefits thereof (including all indemnities contained therein) and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Capitalized terms used herein and not defined herein shall have the respective
meanings given to such terms in the Credit Agreement. The Credit Agreement,
among other things, provides [after giving effect to the Assignment and
Assumption Agreement executed by the Lender and [name of assigning Lender] as of
date hereof]1 for the making of Syndicate Loans by the Lender to Borrower from
time to time in an aggregate amount not to exceed at any time outstanding the
U.S. Dollar amount first above mentioned.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement which have not been waived by the
Administrative Agent at the direction of the Requisite Lenders, the
Administrative Agent shall, upon the written request of the Requisite Lenders,
and by delivery of written notice to the Borrower from the Administrative Agent,
take any and all of the following actions, without prejudice to the rights of
the Administrative Agent, the Lenders or any holder of this Note to enforce its
claims against Borrower: (a) declare all Obligations (including all amounts
outstanding hereunder) to be immediately due and payable (except with respect to
any Event of Default set forth in Section 9.1.(e) or (f) of the Credit
Agreement, in which case all Obligations due hereunder shall automatically
become immediately due and payable without the necessity of any notice or other
demand) without presentment, demand, protest or any other action or obligation
of the Administrative Agent or the Lenders; (b) immediately terminate the
Revolving Credit Facility and the obligation of the Lenders to make Syndicate
Loans under the Revolving Credit Facility (and, in the case of an Event of
Default set forth in Section 9.1(e) or (f) of the Credit Agreement, such
termination shall occur automatically).
The holder hereof shall be entitled to the benefits of the Credit
Agreement and to the other Loan Documents (to the extent and with the effect as
therein provided) [and this Note re-evidences the indebtedness outstanding on
the date hereof with respect to the Syndicate Loans made on the date hereof
which indebtedness has been assigned to the Lender pursuant to Section 11.5. of
the Credit Agreement.]2
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS PROMISSORY NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
THE PROVISIONS OF SECTIONS 11.4. AND 11.9. OF THE CREDIT AGREEMENT ARE
HEREBY EXPRESSLY INCORPORATED BY REFERENCE HEREIN.
Attest: SHAW INDUSTRIES, INC.
By: _________ ......... By:
-----------------------------------------
Title:_______ ......... Title:
---------------------------------
(CORPORATE SEAL)
<PAGE>
E-4
EXHIBIT E
OPINION OF COUNSEL TO THE BORROWER
AND THE OTHER LOAN PARTIES
November 5, 1999
Bank of America, N.A., as Administrative Agent
100 North Tryon Street, 17th Floor
Charlotte, North Carolina 28255
The financial institutions that have or may become Lenders under the below-
referenced Credit Agreement
Alston & Bird LLP
Atlanta, Georgia
Ladies and Gentlemen:
I am the General Counsel of Shaw Industries, Inc., a Georgia
corporation (the "Borrower"), and have represented the Borrower and each
Guarantor in connection with the execution and delivery of (a) that certain
Credit Agreement dated as of November 5, 1999 (the "Credit Agreement") by and
among the Borrower, the Lenders named therein (the "Lenders"), Bank of America,
N.A., as Administrative Agent (the "Administrative Agent") and SunTrust Bank,
Atlanta, as Documentation Agent and (b) each Guaranty executed by a Guarantor.
All capitalized terms used but not defined herein shall have the meanings set
forth in the Credit Agreement.
In this capacity, I have reviewed the following:
(a)______the Credit Agreement, together with all exhibits thereto;
(b)______the Notes issued by the Borrower to the Lenders on or about
the date hereof; and
(c)______each Guaranty executed by a Guarantor; and
(d)______the other documents and instruments executed and delivered by
the Borrower and its Subsidiaries pursuant to Section 4.1 of the Credit
Agreement.
(The foregoing items (a) through (d) are referred to herein as the "Loan
Documents".)
In addition to the foregoing, I have reviewed the articles of
incorporation and by-laws of the Borrower and each Guarantor (the
"Organizational Documents"), certain resolutions adopted by the Board of
Directors of each Loan Party approving and authorizing the execution and
delivery of the Loan Documents to which it is a party and the performance by the
Loan Parties of the transactions contemplated by the Loan Documents, and have
also examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, and other instruments, and
made such other investigations, as I have deemed necessary or advisable for the
purposes of rendering this opinion. I also made such examinations of law as I
have deemed necessary to our rendering the opinions set forth herein. In my
examination of documents, I assumed the genuineness of all signatures on
documents presented to me as originals (other than the signatures of officers of
the Loan Parties), the conformity to originals of documents presented to me as
conformed or reproduced copies.
Based upon the foregoing, and subject to all of the qualifications and
assumptions set forth herein, I am of the opinion that:
1._______Each Loan Party (i) is duly organized as a corporation, and is
validly existing and in good standing under the laws of its jurisdiction of
incorporation and (ii) has the corporate power to execute, deliver and perform
the Loan Documents to which it is a party, to own and use its respective assets,
and to conduct its respective business as presently conducted and as proposed to
be conducted immediately following the consummation of the transactions
contemplated by the Credit Agreement. The Borrower is qualified to transact
business as a foreign corporation in each of the jurisdictions set forth on
Exhibit A attached hereto, which jurisdictions represent all jurisdictions where
the Borrower is required to be so qualified. Each Guarantor is qualified to
transact business as a foreign corporation in each of the jurisdictions set
forth on Exhibit B attached hereto, which jurisdictions represent all
jurisdictions where the Guarantors are required to be so qualified.
2._______The execution and delivery by each Loan Party of the Loan
Documents to which it is a party, and the performance by the Loan Parties of
their obligations thereunder, have been duly authorized by each such Loan Party.
Each Loan Party has duly executed and delivered the Loan Documents to which it
is a party.
3._______The execution and delivery by each Loan Party of the Loan
Documents to which it is a party do not, and if each such Loan Party were now to
perform its obligations under such Loan Documents, such performance would not,
result in any:
(a) violation of such Loan Party's Organizational Documents;
(b) violation of any existing federal or state constitution,
statute, regulation, rule, order, or law to which the Borrower
or any of its Subsidiaries or their respective assets are
subject;
(c) breach or violation of, or default under, any agreements,
instruments, indentures or other documents evidencing any
indebtedness for money borrowed or other material agreements
to which the Borrower or any of its Subsidiaries is a party or
by which the Borrower or any of its Subsidiaries or their
respective assets are bound;
(d) creation or imposition of a contractual lien or security
interest in, on or against the assets of the Borrower or any
of its Subsidiaries under any material written agreements to
which the Borrower or any of its Subsidiaries is a party or by
which the Borrower or any of its Subsidiaries or their
respective assets are bound (other than liens and security
interests in favor of the Administrative Agent for the benefit
of the Lenders); or
(e) violation of any judicial or administrative decree, writ,
judgment or order to which the Borrower or any of its
Subsidiaries or their respective assets are subject.
5._______The execution, delivery and performance by each Loan Party of
each Loan Document to which it is a party, and the consummation of the
transactions thereunder, do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
Governmental Authority.
6._______The Loan Documents constitute the legal, valid and binding
obligations of the Borrower, enforceable against each Loan Party who is a party
thereto in accordance with their respective terms, except that the foregoing
opinion is qualified by the effect of: (a) applicable bankruptcy, insolvency,
reorganization, moratorium, arrangement or similar laws relating to or affecting
the enforcement of creditors' rights generally; (b) any statutes, rules or
procedures and applicable case law limiting the availability of, or proscribing
procedural requirements for the exercise of, creditors' remedies; and (c) the
fact that equitable remedies or relief (including, but not limited to, the
remedy of specific performance) are subject to the discretion of the court
before which any such remedies or relief may be sought.
7._______Except as may be set forth on Schedule 5.1(h) of the Credit
Agreement, there are no judgments outstanding against the Borrower or any of its
Subsidiaries or affecting any of their respective assets, nor is there any
litigation or other proceeding against the Borrower or any of its Subsidiaries
or its assets pending or overtly threatened which is likely to have a Material
Adverse Effect on the Borrower and its Subsidiaries, taken as a whole.
8._______No Loan Party is, and, after giving effect to any Loan will
be, subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act or the Investment Company Act of 1940 or to any federal or
state statute or regulation limiting its ability to incur indebtedness for
borrowed money.
<PAGE>
9._______Assuming that Borrower applies the proceeds of the Loans and
as provided in the Credit Agreement, the transactions contemplated by the Loan
Documents do not violate the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System.
[Customary Qualifications/Assumptions/Limitations]
_________ ......... Very truly yours,
<PAGE>
F-11
EXHIBIT F
FORM OF GUARANTY
THIS GUARANTY dated as of ______________, ____ executed and delivered
by ______________________________ (the "Guarantor") in favor of Bank of America,
N.A., as Administrative Agent (the "Administrative Agent") for the Lenders (the
"Lenders") under the Credit Agreement (as hereinafter defined) (the
Administrative Agent and the Lenders being collectively referred to herein as
the "Guaranteed Parties").
WHEREAS, pursuant to that certain Credit Agreement dated as of November
5, 1999 (as the same may be amended, modified, supplemented or extended from
time to time, the "Credit Agreement"; terms used herein and not defined herein
have their respective defined meanings as set forth in the Credit Agreement) by
and among Shaw Industries, Inc. (the "Borrower"), the Lenders named therein,
Bank of America, N.A., as Administrative Agent and SunTrust Bank, Atlanta, as
Documentation Agent, the Lenders have made available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Guarantor is a [Material Subsidiary][a Subsidiary
comprising the Material Subsidiary Group] of the Borrower and is required,
pursuant to Section 6.9 of the Credit Agreement, to execute and deliver this
Guaranty;
WHEREAS, as a [Material Subsidiary ][a Subsidiary comprising the
Material Subsidiary Group] of the Borrower, the Guarantor has and will benefit
from the financial accommodations provided by the Administrative Agent and the
Lenders to the Borrower under the Credit Agreement as such financial
accommodations will enable the Borrower to provide the Guarantor with sufficient
capital to operate the Guarantor's operations; and
WHEREAS, the Guarantor is therefore willing to guarantee the payment in
full of the principal of, and interest on, all Guaranteed Obligations (as
defined below) owing by the Borrower to the Administrative Agent and the other
Guaranteed Parties under the Credit Agreement and otherwise.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor
agrees as follows:
Section 1. Guaranty. The Guarantor hereby, irrevocably and
unconditionally, guarantees the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of the following
(the following collectively referred to as the "Guaranteed Obligations"): (a)
all Obligations (as defined in the Credit Agreement); and (b) any and all
extensions, renewals, modifications, amendments or substitutions of the
foregoing.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of the Guarantor for
its own account. Accordingly, the Guaranteed Parties shall not be obligated or
required before enforcing this Guaranty against the Guarantor: (a) to pursue any
right or remedy any Guaranteed Party may have against the Borrower, any Loan
Party or any other guarantor of the Guaranteed Obligations or commence any suit
or other proceeding against the Borrower, any Loan Party or any other guarantor
of the Guaranteed Obligations in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any Loan Party or any
other guarantor of the Guaranteed Obligations; or (c) to make demand of the
Borrower or any other guarantor of the Guaranteed Obligations or to enforce or
seek to enforce or realize upon any collateral security held by the
Administrative Agent or any Lender which may secure any of the Guaranteed
Obligations. In this connection, the Guarantor hereby waives the right of the
Guarantor to require any holder of the Guaranteed Obligations to take action
against the Borrower as provided in Official Code of Georgia Annotated
ss.10-7-24.
Section 3. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Guaranteed Party with respect thereto. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without limitation,
the following (whether or not the Guarantor consents thereto or has notice
thereof):
(a)______(i) any change in the amount, interest rate or due date or
other term of any Guaranteed Obligations, or (ii) any change in the time, place
or manner of payment of all or any portion of the Guaranteed Obligations, or
(iii) any amendment or waiver of, or consent to the departure from or other
indulgence with respect to, the Credit Agreement, any other Loan Document, or
any other document or instrument evidencing any Guaranteed Obligations, or (iv)
any waiver, renewal, extension, addition, or supplement to, or deletion from, or
any other action or inaction under or in respect of, the Credit Agreement, the
other Loan Documents, or any other documents, instruments or agreements relating
to the Guaranteed Obligations or any other instrument or agreement referred to
therein or evidencing any Guaranteed Obligations or any assignment or transfer
of any of the foregoing;
(b)______any lack of validity or enforceability of the Credit
Agreement, the other Loan Documents, or any other document, instrument or
agreement referred to therein or evidencing any Guaranteed Obligations or any
assignment or transfer of any of the foregoing;
(c)______any furnishing to the Guaranteed Parties of any security for
the Guaranteed Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral security for the Guaranteed Obligations;
(d)______any settlement or compromise of any of the Guaranteed
Obligations, any security therefor, or any liability of any other party with
respect to the Guaranteed Obligations, or any subordination of the payment of
the Guaranteed Obligations to the payment of any other liability of the
Borrower;
(e)______any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Guarantor or the Borrower or any other Loan Party or any other Person, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding;
(f)______any nonperfection of any security interest or lien on any
collateral securing any of the Guaranteed Obligations;
(g)______any application of sums paid by the Borrower or any other
Person with respect to the liabilities of the Borrower to the Guaranteed
Parties, regardless of what liabilities of the Borrower remain unpaid;
(h)______any defect, limitation or insufficiency in the borrowing
powers of the Borrower or in the exercise thereof;
(i)______any act or failure to act by any Guaranteed Party which may
adversely affect the Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty; or
(k)______any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Guarantor.
Section 4. Action with Respect to Guaranteed Obligations. The
Administrative Agent or any other Guaranteed Party may, at any time and from
time to time, without the consent of, or notice to, the Guarantor, and without
discharging the Guarantor from its obligations hereunder take any and all
actions described in Section 3 above and may otherwise: (a) amend, modify, alter
or supplement the terms of any of the Guaranteed Obligations, including, but not
limited to, extending or shortening the time of payment of any of the Guaranteed
Obligations or increasing, decreasing or otherwise changing the interest rate or
fees that may accrue on any of the Guaranteed Obligations; (b) amend, modify,
alter or supplement the Credit Agreement or any other Loan Document or any other
document evidencing any Guaranteed Obligations; (c) sell, exchange, release or
otherwise deal with all, or any part, of any Collateral; (d) release any Person
liable in any manner for the payment or collection of the Guaranteed
Obligations; (e) exercise, or refrain from exercising, any rights against the
Borrower or any other Person (including, without limitation, any other guarantor
of the Guaranteed Obligations); and (f) apply any sum, by whomsoever paid or
however realized, to the Guaranteed Obligations in such order as such Guaranteed
Party shall elect.
Section 5. Waiver. The Guarantor, to the fullest extent permitted by
law, hereby waives notice of acceptance hereof or any presentment, demand,
protest or notice of any kind, and any other act or thing, or omission or delay
to do any other act or thing, which in any manner or to any extent might vary
the risk of the Guarantor or which otherwise might operate to discharge the
Guarantor from its obligations hereunder.
Section 6. Inability to Accelerate Loan. If any Guaranteed Party or the
holder of any of the Guaranteed Obligations is prevented under Applicable Law or
otherwise from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Guaranteed Party or such holder shall be
entitled to receive from the Guarantor, upon demand therefor, the sums which
otherwise would have been due had such demand or acceleration occurred.
Section 7. Reinstatement of Guaranteed Obligations. If claim is ever
made upon any Guaranteed Party for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations,
and any Guaranteed Party repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over the Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by the Guaranteed Party with
any such claimant (including the Borrower or a trustee in bankruptcy for the
Borrower), then, and in such event, the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding on it, notwithstanding
any revocation hereof or the cancellation of the Credit Agreement, the other
Loan Documents, or any other instrument evidencing any liability of the
Borrower, and the Guarantor shall be and remain liable to the Guaranteed Party
for the amounts so repaid or recovered to the same extent as if such amount had
never originally been paid to the Guaranteed Party.
Section 8. Waiver of Subrogation. The Guarantor hereby forever waives
and releases any and all claims or causes of action the Guarantor may have
against the Borrower or any other Loan Party or any other Person arising by
reason of any payment by the Guarantor to any other Guaranteed Party pursuant to
this Guaranty, whether such claim or cause of action arises by way of any
common-law right of subrogation, by way of any other applicable law or statutes,
or by way of any written or oral agreement between the Guarantor and the
Borrower or Loan Party or Person. This waiver of subrogation is for the benefit
of the Borrower and the Guaranteed Parties and the foregoing waiver may not be
revoked by the Guarantor without the prior, written consent of the
Administrative Agent and the Requisite Lenders on behalf of the other Guaranteed
Parties.
Section 9. Payments Free and Clear. All sums payable by the Guarantor
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any withholding tax or liability
imposed by any governmental agency or authority, wherever located, or any
statute, rule or regulation promulgated thereby), and in the event that the
Guarantor is required by such applicable law or by such governmental agency or
authority to make any such deduction or withholding, the Guarantor shall pay to
the Guaranteed Parties such additional amount as will result in the receipt by
the Administrative Agent on behalf of the Guaranteed Parties of the full amount
payable hereunder had such deduction or withholding not occurred or been
required.
Section 10. Set-off. The Guarantor authorizes the Administrative Agent
and the other Guaranteed Parties at any time and from time to time, without
notice to the Guarantor, which notice the Guarantor hereby expressly waives, to
set off and apply any and all deposits (whether general or special, time or
demand, provisional or final, including any negotiable or non-negotiable
certificate of deposit now or hereafter issued by the Administrative Agent or
the other Guaranteed Parties to the Guarantor) or other indebtedness owing by
such Administrative Agent or Guaranteed Party to the Guarantor, to the then
outstanding Guaranteed Obligations then due and payable. The Administrative
Agent or any other Guaranteed Party may exercise this right of setoff whether or
not such Administrative Agent or Guaranteed Party has made demand for, or
accelerated, any Guaranteed Obligations. The rights of the Administrative Agent
and the other Guaranteed Parties under this Section are in addition to, and not
in limitation or substitution of, other rights and remedies (including, but not
limited to, other rights of set-off) that the Administrative Agent and the other
Guaranteed Parties may have.
Section 11. Subordination Of the Borrower's Obligations To the
Guarantor. As an independent covenant, the Guarantor hereby expressly covenants
and agrees for the benefit of the Guaranteed Parties that all obligations and
liabilities owing by the Borrower to the Guarantor of whatsoever description
including, without limitation, all intercompany receivables owing to the
Guarantor from the Borrower ("Junior Claims") shall be subordinate and junior in
right of payment to all obligations of the Borrower to the Administrative Agent
and other Guaranteed Parties under the terms of the Credit Agreement and the
other Loan Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event
of Default shall have been cured, waived, or shall have ceased to exist, no
direct or indirect payment (in cash, property, securities by setoff or
otherwise) shall be made by the Borrower to the Guarantor on account of or in
any manner in respect of any Junior Claim and the Guarantor shall not receive or
accept any such direct or indirect payment.
In the event of a Proceeding (as hereinafter defined), all Senior
Claims shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim. For the purposes of the previous sentence, "Proceeding" means the
Borrower or the Guarantor shall commence a voluntary case concerning itself
under the Bankruptcy Code of 1978, as amended (the "Bankruptcy Code") or any
other applicable bankruptcy laws; or any involuntary case is commenced against
the Borrower or the Guarantor; or a custodian (as defined in the Bankruptcy Code
or any other applicable bankruptcy laws) is appointed for, or takes charge of,
all or any substantial part of the property of the Borrower or the Guarantor, or
the Borrower or the Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or the Guarantor, or any such
proceeding is commenced against the Borrower or the Guarantor, or the Borrower
or the Guarantor is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
the Guarantor suffers any appointment of any custodian or the like for it or any
substantial part of its property; or the Borrower or the Guarantor makes a
general assignment for the benefit of creditors; or the Borrower or the
Guarantor shall fail to pay, or shall state that it is unable to pay, or shall
be unable to pay, its debts generally as they become due; or the Borrower or the
Guarantor shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or the Borrower or the Guarantor shall
by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action shall be taken by
the Borrower or the Guarantor for the purpose of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to
the Guarantor in contravention of this Section 11, such payment or distribution
shall be deemed received in trust for the benefit of the Administrative Agent
and other Guaranteed Parties and shall be immediately paid over to the
Administrative Agent for application against the Guaranteed Obligations in
accordance with the terms of the Credit Agreement.
The Guarantor agrees to execute such additional documents as the
Administrative Agent may reasonably request to evidence the subordination
provided for in this Section 11.
Section 12. Automatic Acceleration in Certain Events. Upon the
occurrence of an Event of Default specified in Section 9.1.(e) or 9.1.(f) of the
Credit Agreement, all Guaranteed Obligations shall automatically become
immediately due and payable by the Guarantor, without notice or other action on
the part of the Administrative Agent or other Guaranteed Parties, and regardless
of whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated. In addition, if any event described in Section 9.1.(e) or 9.1.(f)
of the Credit Agreement should occur with respect to the Guarantor, then the
Guaranteed Obligations shall automatically become immediately due and payable by
the Guarantor, without notice or other action on the part of the Administrative
Agent or other Guaranteed Parties, and regardless of whether payment of the
Guaranteed Obligations by the Borrower has then been accelerated.
Section 13. Savings Clause. (a) It is the intent of the Guarantor and
the Guaranteed Parties that the Guarantor's maximum liability hereunder shall
be, but not in excess of:
(i) in a Proceeding commenced by or against the Guarantor
under the Bankruptcy Code on or within one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount
which would not otherwise cause the Guaranteed Obligations (or any
other obligations of the Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against the Guarantor under (A) Section 548
of the Bankruptcy Code or (B) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or proceeding
by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a Proceeding commenced by or against the Guarantor
under the Bankruptcy Code subsequent to one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount
which would not otherwise cause the Guaranteed Obligations (or any
other obligations of the Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against the Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(iii) in a Proceeding commenced by or against the Guarantor
under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation
or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of
the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under such law, statute or
regulation including, without limitation, any state fraudulent transfer
or fraudulent conveyance act or statute applied in any such case or
proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b)______To the end set forth in Section 13(a), but only to the extent
that the Guaranteed Obligations would otherwise be subject to avoidance under
the Avoidance Provisions if the Guarantor is not deemed to have received
valuable consideration, fair value or reasonably equivalent value for the
Guaranteed Obligations, or if the Guaranteed Obligations would render the
Guarantor insolvent, or leave the Guarantor with an unreasonably small capital
to conduct its business, or cause the Guarantor to have incurred debts (or to
have intended to have incurred debts) beyond its ability to pay such debts as
they mature, in each case as of the time any of the Guaranteed Obligations are
deemed to have been incurred under the Avoidance Provisions, the maximum
Guaranteed Obligations for which the Guarantor shall be liable hereunder shall
be reduced to that amount which, after giving effect thereto, would not cause
the Guaranteed Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties), as so reduced, to be subject to avoidance under the
Avoidance Provisions.
(c)______This Section 13 shall be applicable only in connection with a
Proceeding brought by or against the Guarantor and is intended solely to
preserve the rights of the Guaranteed Parties hereunder to the maximum extent
that would not cause the Guaranteed Obligations of the Guarantor to be subject
to avoidance under the Avoidance Provisions in connection with any such
Proceeding. Neither the Guarantor nor any other Person shall have any right or
claim under this Section 13 as against the Guaranteed Parties that would not
otherwise be available to the Guarantor or such other Person outside of any
Proceeding.
Section 14. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
the Guarantor assumes and incurs hereunder, and agrees that none of the
Guaranteed Parties will have any duty to advise the Guarantor of information
known to it or any of them regarding such circumstances or risks.
Section 15. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of GEORGIA.
Section 16. Jurisdiction/JURY TRIAL WAIVER/OTHER MATTERS. (a) EACH OF
THE GUARANTEED PARTIES AND THE GUARANTOR ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS GUARANTY OR THE RELATIONSHIP OF THE
GUARANTOR AND THE GUARANTEED PARTIES ESTABLISHED HEREBY, WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY WAIVES 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 GUARANTOR ARISING OUT OF THIS GUARANTY
OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE GUARANTOR AND
ANY GUARANTEED PARTY OF ANY KIND OR NATURE.
(b)______EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES AGREES THAT
THE FEDERAL COURT OF THE NORTHERN DISTRICT OF GEORGIA OR ANY STATE COURT LOCATED
IN FULTON COUNTY, GEORGIA SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN THE GUARANTOR AND ANY GUARANTEED PARTY PERTAINING
DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR TO ANY MATTER ARISING HEREFROM. THE
GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURT. THE GUARANTOR AND THE GUARANTEED
PARTIES WAIVE ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY PROCEEDING IN ANY SUCH COURT OR THAT SUCH PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
(c)______THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY OTHER
GUARANTEED PARTY OR THE ENFORCEMENT BY THE AGENT OR ANY OTHER GUARANTEED PARTY
OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(d)______THE GUARANTOR AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS
HEREUNDER SHALL BE ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING
PAYMENTS HEREUNDER, THE GUARANTOR HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM.
(e)______THE GUARANTOR ACKNOWLEDGES THAT ALL OF THE WAIVERS IN THIS
SECTION HAVE BEEN MADE WILLINGLY, WITH THE ADVICE OF LEGAL COUNSEL AND WITH A
FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.
Section 17. Loan Accounts. The Administrative Agent on behalf of the
other Guaranteed Parties may maintain books and accounts setting forth the
amounts of principal, interest and other sums paid and payable with respect to
the Guaranteed Obligations, and in the case of any dispute relating to any
Guaranteed Obligation, the entries in such account shall be binding upon the
Guarantor as to the outstanding amount of such Guaranteed Obligations and the
amounts paid and payable with respect thereto absent manifest error. The failure
of the Administrative Agent to maintain such books and accounts shall not in any
way relieve or discharge the Guarantor of any of its obligations hereunder.
Section 18. Waiver of Remedies. No delay or failure on the part of the
Administrative Agent or any other Guaranteed Party in the exercise of any right
or remedy it may have against the Guarantor hereunder or otherwise shall operate
as a waiver thereof, and no single or partial exercise by the Lender of any such
right or remedy shall preclude other or further exercise thereof or the exercise
of any other such right or remedy.
Section 19. Successors and Assigns. Each reference herein to the
Administrative Agent or any other Guaranteed Party shall be deemed to include
the Administrative Agent's and such other Guaranteed Party's successors and
assigns (including, but not limited to, any holder of the Guaranteed
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to the Guarantor shall be deemed to include the
Guarantor's executors, administrators, successors and assigns, upon whom this
Guaranty also shall be binding. The Administrative Agent and any other
Guaranteed Party may assign, transfer or sell any Guaranteed Obligation, or
grant or sell participation in any Guaranteed Obligations, pursuant to the terms
of the Loan Documents, to any Person or entity without the consent of, or notice
to, the Guarantor and without releasing, discharging or modifying the
Guarantor's obligations hereunder. The Guarantor hereby consents to the delivery
by the Administrative Agent or any other Guaranteed Party to any assignee,
transferee or participant of any financial or other information regarding the
Borrower or the Guarantor. The Guarantor may not assign or transfer its
obligations hereunder to any Person.
Section 20. Survival of Agreement. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Credit Agreement, the making of the Loans and the execution and delivery
of the other Loan Documents.
Section 21. Amendments. This Guaranty may not be amended except in
writing signed by the Administrative Agent and the Guarantor.
Section 22. Payments/Expenses. All payments made by the Guarantor
pursuant to this Guaranty shall be made in the lawful currency of the United
States of America, in immediately available funds to the office of the
Administrative Agent set forth on Annex I to the Credit Agreement not later than
11:00 a.m., Atlanta time, on the date one Business Day after demand therefor.
The Guarantor shall pay, on demand, all costs and expenses incurred by the
Guaranteed Parties in the collection and enforcement of this Guaranty including
the reasonable fees and disbursements of counsel to the Guaranteed Parties if
collection and/or enforcement is sought by or through an attorney.
Section 23. Notices. All notices, demands or other communications to
the Guarantor hereunder shall be in writing and shall be mailed or hand
delivered or sent via facsimile transmission to the address for the Guarantor
set forth below its signature hereto. All such notices, demands and
communications shall be deemed received by the Guarantor (a) if personally
delivered or by messenger or overnight courier or delivered via facsimile
transmission, on the date of delivery thereof or (b) if through the United
States mail, on the earlier of (i) the date three days after the posting thereof
and (ii) the date of actual receipt by the Guarantor.
Section 24. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 25. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 26. Review of Credit Agreement/Loan Documents. The Guarantor
acknowledges that, prior to the execution and delivery of this Guaranty, the
Guarantor has had the opportunity to review and ask questions regarding the
Credit Agreement and the other Loan Documents referred to therein and to discuss
the same and this Guaranty with its counsel.
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
_________ ......... [GUARANTOR]
By:________________________________________________
Title:_______________________________________
Address for Notices:
===================================
-----------------------------------
Attention:___________________________
Telephone Number:____________________
Telecopy Number:_____________________
<PAGE>
G-5
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to that certain Credit Agreement dated as of November
5, 1999 (as it may be amended, modified, restated or supplemented from time to
time, the "Credit Agreement") among Shaw Industries, Inc., a Georgia corporation
(the "Borrower"), the Lenders named therein, Bank of America, N.A., as
Administrative Agent (the "Administrative Agent") and SunTrust Bank, Atlanta, as
Documentation Agent. Capitalized terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 attached
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 attached hereto of all outstanding
rights and obligations under the Credit Agreement and the other Loan Documents.
After giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Loans owing to the Assignee will be as set forth on Schedule 1
attached hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Syndicate Note held by the Assignor and requests that the
Administrative Agent exchange such Note for new Syndicate Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and to the Assignor in an amount equal to the
Commitment retained by the Assignor, if any, as specified on Schedule 1 attached
hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Sections 7.1. and 7.2. thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption Agreement; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the 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 the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to the Administrative Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service or other forms required under Section 3.21.
4. Following the execution of this Assignment and Assumption Agreement,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Assumption
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 attached hereto.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Assumption Agreement, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Assumption Agreement, relinquish
its rights and be released from its obligations under the Credit Agreement and
the other Loan Documents.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
Fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the Notes
for periods prior to the Effective Date directly between themselves.
7. This Assignment and Assumption Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
8. This Assignment and Assumption 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 all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Assumption Agreement
by telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Assumption Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Assumption Agreement to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE>
SCHEDULE 1
to
ASSIGNMENT AND ASSUMPTION AGREEMENT
Percentage interest assigned: ________%
Assignee's Commitment: $_______
Aggregate outstanding principal amount
of Syndicate Loans assigned: $_______
Principal amount of Syndicate Note payable to Assignee: $_______
Principal amount of Syndicate Note payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Administrative Agent): *_______, ____
[NAME OF ASSIGNOR], as Assignor
By:
Title:
Dated: _________, ___
[NAME OF ASSIGNEE], as Assignee
By:
Title:
Lending Office:
<PAGE>
Accepted [and Approved]**
this ___ day of ___________, ___
BANK OF AMERICA, N.A., as Administrative Agent
By:
Title:
[Approved** this ____ day
of ____________, ____
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
H-5
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
For the quarter ending _________, _____
Bank of America, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Agency Services
Each of the Lenders a party to
the Credit Agreement (defined below)
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of November
5, 1999 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"; capitalized terms used herein, and not otherwise defined
herein, shall have their respective defined meanings as set forth in the Credit
Agreement) among Shaw Industries, Inc. (the "Borrower"), the Lenders named
therein, Bank of America, N.A., as Administrative Agent (the "Administrative
Agent") and SunTrust Bank, Atlanta, as Documentation Agent.
Pursuant to Section 7.3 of the Credit Agreement, the undersigned hereby
certifies to the Administrative Agent and the Lenders as follows:
(1) The undersigned is the [Treasurer/Chief Financial
Officer/independent public accountant] of the Borrower.
(2) The undersigned has examined the books and records of the Borrower
and has conducted such other examinations and investigations as are reasonably
necessary to provide this Compliance Certificate.
(3) The Borrower is in compliance with Articles 7 and 8 of the Credit
Agreement and no Default or Event of Default has occurred and is continuing [for
Compliance Certificate delivered by Treasurer or Chief Financial Officer only].
The undersigned hereby further certifies to the Administrative Agent
and the Lenders that the following financial information of the Borrower is true
and correct as of the date hereof:
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
I. EBIT to Interest Ratio (ss.8.1(a))1
A. Consolidated EBIT for Four-Quarter Period:
Consolidated Net Income $_________________
plus, to the extent deducted in
determining Consolidated Net Income:
Consolidated Interest Expense $_________________
Income Taxes $_________________
Consolidated EBIT: $
B. Consolidated Interest Expense for
Four-Quarter Period: $_________________
C. EBIT to Interest Ratio (A divided by B): _________:1:00 minimum ratio required: 2.25 to 1.00
II. Consolidated Funded Debt to EBITDA (ss.8.1(b))
A. Consolidated Funded Debt Outstanding: $_________________
B. Consolidated EBITDA for Four-Quarter
Period:
Consolidated Net Income $_________________
plus, to the extent deducted in
determining Consolidated Net Income
Consolidated Interest Expense, plus $_________________
Income Taxes, plus $_________________
Depreciation, plus $_________________
Amortization $_________________
Consolidated EBITDA: $
C. Consolidated Funded Debt to EBITDA Ratio _________:1:00 maximum ratio permitted: 4.00 to 1.00
(A divided by B):
<PAGE>
III. Indebtedness (ss.8.2)
A. Capital Lease Debt/Purchase Money Debt
Outstanding: $_________________ maximum allowed: $50,000,000
B. Consolidated Funded Debt incurred after
Effective Date plus Indebtedness related $_________________ maximum allowed: [20% of Total Assets]
to Nylon Polymer [ss.8.2(f)(ii)] and La
Mirada Guaranteed Indebtedness
[ss.8.2.(h)(iii)]:
C. Sold Receivables Indebtedness: $_________________ maximum allowed: $325,000,000
IV. Restricted Payments (ss.8.5)2
A. Restricted Payments made since [Fifth
Amendment Effective Date]3 (other than $__________________ those
described in Section 10.5(a) and (b) of the Existing Credit Agreement):
B. Permitted Amount4 as of
the date hereof:
$400,000,000
plus net cash proceeds received from sale of international business
operations after [Fifth Amendment Effective Date] (not to exceed
$100,000,000) $__________
minus aggregate Restricted
Payments made between
October 15, 1999 and
[Fifth Amendment Effective
Date] in excess of
$50,000,000
$----------
Permitted Amount as of the date hereof:
$-----------------
C. Test - Item A must be less than or equal Yes: ___ No: ___
to Item B
<PAGE>
V. Year-end Certificate only - Operating
Leases (ss.8.9)
Aggregate amount of all rents paid under
operating leases during fiscal year: $_________________ maximum allowed: $100,000,000
VI. Year-end Certificate only - Investments
(ss.8.3(vii))
Aggregate amount of all non-acquisition
related investments during fiscal year: $_________________ maximum allowed: $50,000,000
</TABLE>
<PAGE>
Based on the Consolidated Funded Debt to EBITDA Ratio described above
in item III.C. above, the undersigned hereby confirms that the facility fee
percentage payable pursuant to Section 3.14 of the Credit Agreement for the
quarterly period described herein is _____% and the Applicable Margin for LIBOR
Loans for such period is ______%.
<TABLE>
<CAPTION>
<S> <C> <C>
Consolidated Funded Facility Fee Applicable Margin
Debt/EBITDA Ratio Percentage for LIBOR Loans
-------------------------------------- --------------------- ----------------------
Greater than 3.50 to 1.00 .25 % .875%
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .20% .675%
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.00 to 1.00
but greater than 2.50 to 1.00 .175% .575%
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.50 to 1.00
but greater than 2.00 to 1.00 .15% .475%
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.00 to 1.00 .10% .30%
-------------------------------------- --------------------- ----------------------
</TABLE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the day of __________, ____.
By:
Title:
<PAGE>
- --------
1 To be used for replacement of Surrendered Notes. 2 To be used for replacement
of Surrendered Notes.
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Assumption Agreement to the Administrative Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
1 Section references contained herein are references to the section of the
Credit Agreement requesting the respective financial data.
2 To be included from and after "Trigger Date" (see Section 8.5).
3 Insert applicable date based on "Fifth Amendment Effective Date" from
Existing Credit Agreement.
4 As defined in Existing Credit Agreement.
GUARANTY
THIS GUARANTY dated as of November 5, 1999 executed and delivered by
SHAW CONTRACT FLOORING SERVICES, INC. (the "Guarantor") in favor of BANK OF
AMERICA, N.A., as Administrative Agent (the "Administrative Agent") for the
Lenders (the "Lenders") under the Credit Agreement (as hereinafter defined) (the
Administrative Agent and the Lenders being collectively referred to herein as
the "Guaranteed Parties").
WHEREAS, pursuant to that certain Credit Agreement dated as of November
5, 1999 (as the same may be amended, modified, supplemented or extended from
time to time, the "Credit Agreement"; terms used herein and not defined herein
have their respective defined meanings as set forth in the Credit Agreement) by
and among Shaw Industries, Inc. (the "Borrower"), the Lenders named therein,
Bank of America, N.A., as Administrative Agent and SunTrust Bank, Atlanta, as
Documentation Agent, the Lenders have made available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Guarantor is a Material Subsidiary of the Borrower and is
required, pursuant to Section 4.1(b)(ii) of the Credit Agreement, to execute and
deliver this Guaranty;
WHEREAS, as a Material Subsidiary of the Borrower, the Guarantor has
and will benefit from the financial accommodations provided by the
Administrative Agent and the Lenders to the Borrower under the Credit Agreement
as such financial accommodations will enable the Borrower to provide the
Guarantor with sufficient capital to operate the Guarantor's operations; and
WHEREAS, the Guarantor is therefore willing to guarantee the payment in
full of the principal of, and interest on, all Guaranteed Obligations (as
defined below) owing by the Borrower to the Administrative Agent and the other
Guaranteed Parties under the Credit Agreement and otherwise.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor
agrees as follows:
Section 1. Guaranty. The Guarantor hereby, irrevocably and
unconditionally, guarantees the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of the following
(the following collectively referred to as the "Guaranteed Obligations"): (a)
all Obligations (as defined in the Credit Agreement); and (b) any and all
extensions, renewals, modifications, amendments or substitutions of the
foregoing.
<PAGE>
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of the Guarantor for
its own account. Accordingly, the Guaranteed Parties shall not be obligated or
required before enforcing this Guaranty against the Guarantor: (a) to pursue any
right or remedy any Guaranteed Party may have against the Borrower, any Loan
Party or any other guarantor of the Guaranteed Obligations or commence any suit
or other proceeding against the Borrower, any Loan Party or any other guarantor
of the Guaranteed Obligations in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any Loan Party or any
other guarantor of the Guaranteed Obligations; or (c) to make demand of the
Borrower or any other guarantor of the Guaranteed Obligations or to enforce or
seek to enforce or realize upon any collateral security held by the
Administrative Agent or any Lender which may secure any of the Guaranteed
Obligations. In this connection, the Guarantor hereby waives the right of the
Guarantor to require any holder of the Guaranteed Obligations to take action
against the Borrower as provided in Official Code of Georgia Annotated
ss.10-7-24.
Section 3. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Guaranteed Party with respect thereto. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without limitation,
the following (whether or not the Guarantor consents thereto or has notice
thereof):
(a) (i) any change in the amount, interest rate or due date or other
term of any Guaranteed Obligations, or (ii) any change in the time, place or
manner of payment of all or any portion of the Guaranteed Obligations, or (iii)
any amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing any Guaranteed Obligations, or (iv) any
waiver, renewal, extension, addition, or supplement to, or deletion from, or any
other action or inaction under or in respect of, the Credit Agreement, the other
Loan Documents, or any other documents, instruments or agreements relating to
the Guaranteed Obligations or any other instrument or agreement referred to
therein or evidencing any Guaranteed Obligations or any assignment or transfer
of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, the
other Loan Documents, or any other document, instrument or agreement referred to
therein or evidencing any Guaranteed Obligations or any assignment or transfer
of any of the foregoing;
2
<PAGE>
(c) any furnishing to the Guaranteed Parties of any security for the
Guaranteed Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral security for the Guaranteed Obligations;
(d) any settlement or compromise of any of the Guaranteed Obligations,
any security therefor, or any liability of any other party with respect to the
Guaranteed Obligations, or any subordination of the payment of the Guaranteed
Obligations to the payment of any other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Guarantor or the Borrower or any other Loan Party or any other Person, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding;
(f) any nonperfection of any security interest or lien on any
collateral securing any of the Guaranteed Obligations;
(g) any application of sums paid by the Borrower or any other Person
with respect to the liabilities of the Borrower to the Guaranteed Parties,
regardless of what liabilities of the Borrower remain unpaid;
(h) any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof;
(i) any act or failure to act by any Guaranteed Party which may
adversely affect the Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty; or
(k) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Guarantor.
Section 4. Action with Respect to Guaranteed Obligations. The
Administrative Agent or any other Guaranteed Party may, at any time and from
time to time, without the consent of, or notice to, the Guarantor, and without
discharging the Guarantor from its obligations hereunder take any and all
actions described in Section 3 above and may otherwise: (a) amend, modify, alter
or supplement the terms of any of the Guaranteed Obligations, including, but not
limited to, extending or shortening the time of payment of any of the Guaranteed
Obligations or increasing, decreasing or otherwise changing the interest rate or
fees that may accrue on any of the Guaranteed Obligations; (b) amend, modify,
alter or supplement the Credit Agreement or any other Loan Document or any other
document evidencing any Guaranteed Obligations; (c) sell, exchange, release or
otherwise deal with all, or any part, of any Collateral; (d) release any Person
liable in any manner for the payment or collection of the Guaranteed
Obligations; (e) exercise, or refrain from exercising, any rights against the
Borrower or any other Person (including, without limitation, any other guarantor
of the Guaranteed Obligations); and (f) apply any sum, by whomsoever paid or
however realized, to the Guaranteed Obligations in such order as such Guaranteed
Party shall elect.
3
<PAGE>
Section 5. Waiver. The Guarantor, to the fullest extent permitted by
law, hereby waives notice of acceptance hereof or any presentment, demand,
protest or notice of any kind, and any other act or thing, or omission or delay
to do any other act or thing, which in any manner or to any extent might vary
the risk of the Guarantor or which otherwise might operate to discharge the
Guarantor from its obligations hereunder.
Section 6. Inability to Accelerate Loan. If any Guaranteed Party or the
holder of any of the Guaranteed Obligations is prevented under Applicable Law or
otherwise from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Guaranteed Party or such holder shall be
entitled to receive from the Guarantor, upon demand therefor, the sums which
otherwise would have been due had such demand or acceleration occurred.
Section 7. Reinstatement of Guaranteed Obligations. If claim is ever
made upon any Guaranteed Party for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations,
and any Guaranteed Party repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over the Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by the Guaranteed Party with
any such claimant (including the Borrower or a trustee in bankruptcy for the
Borrower), then, and in such event, the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding on it, notwithstanding
any revocation hereof or the cancellation of the Credit Agreement, the other
Loan Documents, or any other instrument evidencing any liability of the
Borrower, and the Guarantor shall be and remain liable to the Guaranteed Party
for the amounts so repaid or recovered to the same extent as if such amount had
never originally been paid to the Guaranteed Party.
Section 8. Waiver of Subrogation. The Guarantor hereby forever waives
and releases any and all claims or causes of action the Guarantor may have
against the Borrower or any other Loan Party or any other Person arising by
reason of any payment by the Guarantor to any other Guaranteed Party pursuant to
this Guaranty, whether such claim or cause of action arises by way of any
common-law right of subrogation, by way of any other applicable law or statutes,
or by way of any written or oral agreement between the Guarantor and the
Borrower or Loan Party or Person. This waiver of subrogation is for the benefit
of the Borrower and the Guaranteed Parties and the foregoing waiver may not be
revoked by the Guarantor without the prior, written consent of the
Administrative Agent and the Requisite Lenders on behalf of the other Guaranteed
Parties.
4
<PAGE>
Section 9. Payments Free and Clear. All sums payable by the Guarantor
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any withholding tax or liability
imposed by any governmental agency or authority, wherever located, or any
statute, rule or regulation promulgated thereby), and in the event that the
Guarantor is required by such applicable law or by such governmental agency or
authority to make any such deduction or withholding, the Guarantor shall pay to
the Guaranteed Parties such additional amount as will result in the receipt by
the Administrative Agent on behalf of the Guaranteed Parties of the full amount
payable hereunder had such deduction or withholding not occurred or been
required.
Section 10. Set-off. The Guarantor authorizes the Administrative Agent
and the other Guaranteed Parties at any time and from time to time, without
notice to the Guarantor, which notice the Guarantor hereby expressly waives, to
set off and apply any and all deposits (whether general or special, time or
demand, provisional or final, including any negotiable or non-negotiable
certificate of deposit now or hereafter issued by the Administrative Agent or
the other Guaranteed Parties to the Guarantor) or other indebtedness owing by
such Administrative Agent or Guaranteed Party to the Guarantor, to the then
outstanding Guaranteed Obligations then due and payable. The Administrative
Agent or any other Guaranteed Party may exercise this right of setoff whether or
not such Administrative Agent or Guaranteed Party has made demand for, or
accelerated, any Guaranteed Obligations. The rights of the Administrative Agent
and the other Guaranteed Parties under this Section are in addition to, and not
in limitation or substitution of, other rights and remedies (including, but not
limited to, other rights of set-off) that the Administrative Agent and the other
Guaranteed Parties may have.
Section 11. Subordination Of the Borrower's Obligations To the
Guarantor. As an independent covenant, the Guarantor hereby expressly covenants
and agrees for the benefit of the Guaranteed Parties that all obligations and
liabilities owing by the Borrower to the Guarantor of whatsoever description
including, without limitation, all intercompany receivables owing to the
Guarantor from the Borrower ("Junior Claims") shall be subordinate and junior in
right of payment to all obligations of the Borrower to the Administrative Agent
and other Guaranteed Parties under the terms of the Credit Agreement and the
other Loan Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event
of Default shall have been cured, waived, or shall have ceased to exist, no
direct or indirect payment (in cash, property, securities by setoff or
otherwise) shall be made by the Borrower to the Guarantor on account of or in
any manner in respect of any Junior Claim and the Guarantor shall not receive or
accept any such direct or indirect payment.
5
<PAGE>
In the event of a Proceeding (as hereinafter defined), all Senior
Claims shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim. For the purposes of the previous sentence, "Proceeding" means the
Borrower or the Guarantor shall commence a voluntary case concerning itself
under the Bankruptcy Code of 1978, as amended (the "Bankruptcy Code") or any
other applicable bankruptcy laws; or any involuntary case is commenced against
the Borrower or the Guarantor; or a custodian (as defined in the Bankruptcy Code
or any other applicable bankruptcy laws) is appointed for, or takes charge of,
all or any substantial part of the property of the Borrower or the Guarantor, or
the Borrower or the Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or the Guarantor, or any such
proceeding is commenced against the Borrower or the Guarantor, or the Borrower
or the Guarantor is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
the Guarantor suffers any appointment of any custodian or the like for it or any
substantial part of its property; or the Borrower or the Guarantor makes a
general assignment for the benefit of creditors; or the Borrower or the
Guarantor shall fail to pay, or shall state that it is unable to pay, or shall
be unable to pay, its debts generally as they become due; or the Borrower or the
Guarantor shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or the Borrower or the Guarantor shall
by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action shall be taken by
the Borrower or the Guarantor for the purpose of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to
the Guarantor in contravention of this Section 11, such payment or distribution
shall be deemed received in trust for the benefit of the Administrative Agent
and other Guaranteed Parties and shall be immediately paid over to the
Administrative Agent for application against the Guaranteed Obligations in
accordance with the terms of the Credit Agreement.
The Guarantor agrees to execute such additional documents as the
Administrative Agent may reasonably request to evidence the subordination
provided for in this Section 11.
6
<PAGE>
Section 12. Automatic Acceleration in Certain Events. Upon the
occurrence of an Event of Default specified in Section 9.1.(e) or 9.1.(f) of the
Credit Agreement, all Guaranteed Obligations shall automatically become
immediately due and payable by the Guarantor, without notice or other action on
the part of the Administrative Agent or other Guaranteed Parties, and regardless
of whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated. In addition, if any event described in Section 9.1.(e) or 9.1.(f)
of the Credit Agreement should occur with respect to the Guarantor, then the
Guaranteed Obligations shall automatically become immediately due and payable by
the Guarantor, without notice or other action on the part of the Administrative
Agent or other Guaranteed Parties, and regardless of whether payment of the
Guaranteed Obligations by the Borrower has then been accelerated.
Section 13. Savings Clause. (a) It is the intent of the Guarantor and
the Guaranteed Parties that the Guarantor's maximum liability hereunder shall
be, but not in excess of:
(i) in a Proceeding commenced by or against the Guarantor
under the Bankruptcy Code on or within one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount
which would not otherwise cause the Guaranteed Obligations (or any
other obligations of the Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against the Guarantor under (A) Section 548
of the Bankruptcy Code or (B) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or proceeding
by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a Proceeding commenced by or against the Guarantor
under the Bankruptcy Code subsequent to one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount
which would not otherwise cause the Guaranteed Obligations (or any
other obligations of the Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against the Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(iii) in a Proceeding commenced by or against the Guarantor
under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation
or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of
the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under such law, statute or
regulation including, without limitation, any state fraudulent transfer
or fraudulent conveyance act or statute applied in any such case or
proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 13(a), but only to the extent that
the Guaranteed Obligations would otherwise be subject to avoidance under the
Avoidance Provisions if the Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for the Guaranteed
Obligations, or if the Guaranteed Obligations would render the Guarantor
insolvent, or leave the Guarantor with an unreasonably small capital to conduct
its business, or cause the Guarantor to have incurred debts (or to have intended
to have incurred debts) beyond its ability to pay such debts as they mature, in
each case as of the time any of the Guaranteed Obligations are deemed to have
been incurred under the Avoidance Provisions, the maximum Guaranteed Obligations
for which the Guarantor shall be liable hereunder shall be reduced to that
amount which, after giving effect thereto, would not cause the Guaranteed
Obligations (or any other obligations of the Guarantor to the Guaranteed
Parties), as so reduced, to be subject to avoidance under the Avoidance
Provisions.
7
<PAGE>
(c) This Section 13 shall be applicable only in connection with a
Proceeding brought by or against the Guarantor and is intended solely to
preserve the rights of the Guaranteed Parties hereunder to the maximum extent
that would not cause the Guaranteed Obligations of the Guarantor to be subject
to avoidance under the Avoidance Provisions in connection with any such
Proceeding. Neither the Guarantor nor any other Person shall have any right or
claim under this Section 13 as against the Guaranteed Parties that would not
otherwise be available to the Guarantor or such other Person outside of any
Proceeding.
Section 14. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
the Guarantor assumes and incurs hereunder, and agrees that none of the
Guaranteed Parties will have any duty to advise the Guarantor of information
known to it or any of them regarding such circumstances or risks.
Section 15. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of GEORGIA.
Section 16. Jurisdiction/JURY TRIAL WAIVER/OTHER MATTERS. (a) EACH OF
THE GUARANTEED PARTIES AND THE GUARANTOR ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS GUARANTY OR THE RELATIONSHIP OF THE
GUARANTOR AND THE GUARANTEED PARTIES ESTABLISHED HEREBY, WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY WAIVES 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 GUARANTOR ARISING OUT OF THIS GUARANTY
OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE GUARANTOR AND
ANY GUARANTEED PARTY OF ANY KIND OR NATURE.
(b) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES AGREES THAT THE
FEDERAL COURT OF THE NORTHERN DISTRICT OF GEORGIA OR ANY STATE COURT LOCATED IN
FULTON COUNTY, GEORGIA SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN THE GUARANTOR AND ANY GUARANTEED PARTY PERTAINING DIRECTLY
OR INDIRECTLY TO THIS GUARANTY OR TO ANY MATTER ARISING HEREFROM. THE GUARANTOR
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURT. THE GUARANTOR AND THE GUARANTEED PARTIES
WAIVE ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
PROCEEDING IN ANY SUCH COURT OR THAT SUCH PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
8
<PAGE>
(c) THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY OTHER GUARANTEED
PARTY OR THE ENFORCEMENT BY THE AGENT OR ANY OTHER GUARANTEED PARTY OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(d) THE GUARANTOR AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER
SHALL BE ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING PAYMENTS
HEREUNDER, THE GUARANTOR HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM.
(e) THE GUARANTOR ACKNOWLEDGES THAT ALL OF THE WAIVERS IN THIS SECTION
HAVE BEEN MADE WILLINGLY, WITH THE ADVICE OF LEGAL COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.
Section 17. Loan Accounts. The Administrative Agent on behalf of the
other Guaranteed Parties may maintain books and accounts setting forth the
amounts of principal, interest and other sums paid and payable with respect to
the Guaranteed Obligations, and in the case of any dispute relating to any
Guaranteed Obligation, the entries in such account shall be binding upon the
Guarantor as to the outstanding amount of such Guaranteed Obligations and the
amounts paid and payable with respect thereto absent manifest error. The failure
of the Administrative Agent to maintain such books and accounts shall not in any
way relieve or discharge the Guarantor of any of its obligations hereunder.
Section 18. Waiver of Remedies. No delay or failure on the part of the
Administrative Agent or any other Guaranteed Party in the exercise of any right
or remedy it may have against the Guarantor hereunder or otherwise shall operate
as a waiver thereof, and no single or partial exercise by the Lender of any such
right or remedy shall preclude other or further exercise thereof or the exercise
of any other such right or remedy.
Section 19. Successors and Assigns. Each reference herein to the
Administrative Agent or any other Guaranteed Party shall be deemed to include
the Administrative Agent's and such other Guaranteed Party's successors and
assigns (including, but not limited to, any holder of the Guaranteed
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to the Guarantor shall be deemed to include the
Guarantor's executors, administrators, successors and assigns, upon whom this
Guaranty also shall be binding. The Administrative Agent and any other
Guaranteed Party may assign, transfer or sell any Guaranteed Obligation, or
grant or sell participation in any Guaranteed Obligations, pursuant to the terms
of the Loan Documents, to any Person or entity without the consent of, or notice
to, the Guarantor and without releasing, discharging or modifying the
Guarantor's obligations hereunder. The Guarantor hereby consents to the delivery
by the Administrative Agent or any other Guaranteed Party to any assignee,
transferee or participant of any financial or other information regarding the
Borrower or the Guarantor. The Guarantor may not assign or transfer its
obligations hereunder to any Person.
9
<PAGE>
Section 20. Survival of Agreement. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Credit Agreement, the making of the Loans and the execution and delivery
of the other Loan Documents.
Section 21. Amendments. This Guaranty may not be amended except in
writing signed by the Administrative Agent and the Guarantor.
Section 22. Payments/Expenses. All payments made by the Guarantor
pursuant to this Guaranty shall be made in the lawful currency of the United
States of America, in immediately available funds to the office of the
Administrative Agent set forth on Annex I to the Credit Agreement not later than
11:00 a.m., Atlanta time, on the date one Business Day after demand therefor.
The Guarantor shall pay, on demand, all costs and expenses incurred by the
Guaranteed Parties in the collection and enforcement of this Guaranty including
the reasonable fees and disbursements of counsel to the Guaranteed Parties if
collection and/or enforcement is sought by or through an attorney.
Section 23. Notices. All notices, demands or other communications to
the Guarantor hereunder shall be in writing and shall be mailed or hand
delivered or sent via facsimile transmission to the address for the Guarantor
set forth below its signature hereto. All such notices, demands and
communications shall be deemed received by the Guarantor (a) if personally
delivered or by messenger or overnight courier or delivered via facsimile
transmission, on the date of delivery thereof or (b) if through the United
States mail, on the earlier of (i) the date three days after the posting thereof
and (ii) the date of actual receipt by the Guarantor.
Section 24. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 25. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 26. Review of Credit Agreement/Loan Documents. The Guarantor
acknowledges that, prior to the execution and delivery of this Guaranty, the
Guarantor has had the opportunity to review and ask questions regarding the
Credit Agreement and the other Loan Documents referred to therein and to discuss
the same and this Guaranty with its counsel.
10
<PAGE>
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
SHAW CONTRACT FLOORING
SERVICES, INC.
By:______________________________________________
Title:_____________________________________
Address for Notices:
c/o Shaw Industries, Inc.
Post Office Drawer 2128
Dalton, Georgia 30722-2128
Attention: Kenneth G. Jackson
Telephone No.: (706) 275-1010
Telecopy No.: (706) 275-1985
11
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEETS OF SHAW INDUSTRIES, INC. AND SUBSIDIARIES
AS OF OCTOBER 2, 1999 AND THE RELATED CONDENSED CONSOLIDATED STATEMENTS OF
INCOME AND CASH FLOWS FOR THE NINE MONTHS ENDED OCTOBER 2, 1999 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
NOTE: EARNINGS PER SHARE (E.P.S.) HAVE BEEN CALCULATED IN ACCORDANCE WITH FASB
128.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-01-2000
<PERIOD-END> OCT-02-1999
<CASH> 25,912
<SECURITIES> 0
<RECEIVABLES> 273,324
<ALLOWANCES> 24,003
<INVENTORY> 699,613
<CURRENT-ASSETS> 1,144,808
<PP&E> 1,548,767
<DEPRECIATION> 806,652
<TOTAL-ASSETS> 2,352,148
<CURRENT-LIABILITIES> 588,860
<BONDS> 0
0
0
<COMMON> 152,854
<OTHER-SE> 751,163
<TOTAL-LIABILITY-AND-EQUITY> 2,352,148
<SALES> 3,103,852
<TOTAL-REVENUES> 3,103,852
<CGS> 2,284,455
<TOTAL-COSTS> 2,284,455
<OTHER-EXPENSES> 467,258
<LOSS-PROVISION> 5,075
<INTEREST-EXPENSE> 46,572
<INCOME-PRETAX> 300,492
<INCOME-TAX> 123,345
<INCOME-CONTINUING> 177,147
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 180,106
<EPS-BASIC> 1.29
<EPS-DILUTED> 1.27
</TABLE>
