SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
|X|ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [FEE REQUIRED]
For the fiscal year ended January 2, 1999
OR
|_|TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED]
For the transition period from __________ to __________
Commission File
Number 1-6853
- --------------------------------------------------------------------------------
[PICTURE OMITTED](R) Shaw Industries, Inc.
(Exact name of registrant as specified in its charter)
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Georgia 58-1032521
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
616 East Walnut Avenue,
Dalton, Georgia 30720
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: 706/278-3812
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Name of Each Exchange
Title of Each Class On Which Registered
Common Stock, No Par Value The New York Stock Exchange
$1.11 Stated Value The Pacific Stock Exchange
Rights to Purchase Series A
Participating Preferred Stock The New York Stock Exchange
$.50 Stated Value The Pacific Stock Exchange
SECURITIES REGISTERED PURSUANT TO SECTION 12 (g) OF ACT: None
Indicate by check mark whether the registrant (1) has filed all reports required
to be filled by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports and (2) has been subject to such filing
requirements for the past 90 days. Yes |X| No_____
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.[ ]
Aggregate market value of the voting stock held by non-affiliates of the
registrant, computed by reference to the closing sales price on The New York
Stock Exchange on March 26, 1999 was: $1,925,948,967
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date.
Title of Each Class Outstanding at March 26, 1999
Common Stock, No Par Value 141,336,297 Shares
DOCUMENTS INCORPORATED BY REFERENCE
1998 Annual Report to Shareholders --- Part II.
Definitive Proxy Statement for the Annual Meeting of Shareholders for fiscal
1998 on April 29, 1999 --- Part III.
<PAGE>
PART I
Item I. Business
Shaw Industries, Inc. ("Shaw" or the "company") is the world's largest
carpet manufacturer based on both revenue and volume of production. Shaw designs
and manufactures approximately 3,100 styles of tufted and woven carpet for
residential and commercial use under the PHILADELPHIA, TRUSTMARK, CABIN CRAFTS,
SHAW COMMERCIAL CARPETS, STRATTON, NETWORX, SHAWMARK, EVANS BLACK, SALEM,
SUTTON, PATCRAFT, CUMBERLAND, DESIGNWEAVE, QUEEN CARPET, QUEEN COMMERCIAL,
TUFTEX, REDBOOK, MINSTER and INVICTA trade names and under certain private
labels. The company's manufacturing operations are fully integrated from the
processing of yarns through the finishing of carpet. The company's carpet is
sold in a broad range of prices, patterns, colors and textures with the majority
of its sales in the medium to high retail price range. Shaw sells its wholesale
products to retailers, distributors and commercial users throughout the United
States, Canada, Mexico and Australia; through its own residential and commercial
contract distribution channels to various residential and commercial end-users
in the United States; and to a lesser degree, exports to additional overseas
markets. The company also provides installation services and sells laminate
flooring and ceramic tile.
On May 31, 1994, the company formed a joint venture (the "Terza Joint
Venture") with Grupo Industrial Alfa, S.A. de C.V. of Monterrey, Mexico, for the
manufacture, distribution and marketing of carpets, rugs and related products
primarily in Mexico and South America. The company's investment in the Terza
Joint Venture is being accounted for using the equity method.
On April 3, 1998 the company completed the disposition of Carpets
International, Plc, a wholly-owned U.K. subsidiary, which resulted in a removal
of certain assets of $16,566,000, net of liabilities. The disposal resulted in a
charge to earnings of $20,300,000, net of tax benefit, which was recorded in the
fourth quarter of the year ended January 3, 1998.
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 of
approximately $18,000,000. Retail stores not sold were closed. The company
incurred a charge to record the loss on the sale of the residential retail
operations, store closing costs and write-down of certain assets of $132,303,000
($92,660,000, net of tax benefit) related to exiting its residential retail
operations.
On October 6, 1998, the company merged with Queen Carpet Corporation for
approximately $579,000,000 consisting of 19,444,444 shares of common stock,
3,150,000 shares of Maxim stock, cash of approximately $36,000,000 and assumed
debt of approximately $216,000,000. As a result of the sale of the 3,150,000
shares of Maxim stock during the fourth quarter ended January 2, 1999, the
company incurred a loss on the sale of equity securities of approximately
$22,247,000 ($13,370,000, net of tax benefit).
The company supplies the Australian, Pacific Rim and other international
markets with a range of products targeted to the needs of those markets. For
1998, 1997 and 1996, international operations accounted for 4.8, 9.2, and 10.5
percent, respectively, of the company's net sales. Geographical information
about the company's sales and long-lived assets is incorporated by reference to
page 18 of Exhibit 13 to this report.
In 1998, the company adopted EVA(R), a financial measurement tool which
is designed to emphasize profitability, effective asset allocation, the cost of
capital and the creation of shareholder wealth.
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<PAGE>
Products and Marketing
Substantially all carpet manufactured by the company is tufted carpet
made from nylon, polypropylene yarn and wool. In the tufting process, yarn is
inserted by multiple needles into a synthetic backing, forming loops which may
be cut or left uncut, depending on the desired texture or construction.
According to industry estimates, tufted carpet accounted for 90.4% of unit
volume shipments of carpet manufactured in the United States during 1998.
Substantially all carpet manufactured in the United States is made from
synthetic fibers, with nylon accounting for 59.3% of the total, polypropylene
33.7%, polyester 6.6% and wool 0.4%. During 1998, the company processed
approximately 96% of its requirements for carpet yarn in its own yarn processing
facilities.
The company believes that its significant investment in modern,
state-of-the-art equipment has been an important factor in achieving and
maintaining its leadership position in the marketplace. During the past five
fiscal years, the company has invested approximately $668 million (including
acquisitions) in property additions. The company continually seeks opportunities
for increasing its sales volume and market share. For example, the company
continues to expand its product lines of carpet manufactured from polypropylene
fiber, including fibers produced by the company's own extrusion equipment. The
company also has a manufacturing facility for the production of carpet tiles for
the commercial market to facilitate the company's growing demand for its tile
products.
The overall level of sales for the company and the carpet industry is
influenced by a number of factors, including consumer confidence and spending
for durable goods, interest rates, turnover in housing, the condition of the
residential construction industry and the overall strength of the economy. The
company's international operations are also impacted by the markets in which
they operate.
The marketing of carpet is influenced significantly by current trends in
style and fashion, principally color trends. The company believes it has been a
leader in the development of color technology in the carpet industry and that
its dyeing facilities are among the most modern and versatile in the industry.
The company maintains an in-house product development department to identify
developing color and style trends which are expected to affect its customers'
buying decisions. This department is strengthened by the company's Research and
Development Center. This state-of-the-art complex includes a 75,000 square foot
pilot plant featuring sample extrusion, yarn processing, tufting, dyeing,
coating and shearing equipment, and three fiber and dye development
laboratories.
Sales and Distribution
The company's wholesale products are marketed domestically by
approximately 1,050 salaried sales personnel in its various marketing divisions
directly to retailers and distributors and to large national accounts. The
company's thirteen (13) regional warehouse facilities and nine (9)
redistribution centers, along with its centralized management information
system, enable it to provide prompt delivery of its products to both its retail
customers and wholesale distributors. The company's substantial investment in
management information systems permits efficient production scheduling and
control of inventory levels.
The company sells its wholesale products to approximately 46,300
retailers, distributors and national accounts located throughout the United
States, Australia, Mexico, and Canada. Retailers and national accounts, on a
combined basis, accounted for approximately 86.8% of the company's carpet sales
for 1998. Shaw also sells to approximately 50 wholesale distributors.
Approximately 3.6% of the company's carpet sales in 1998 were to distributors.
Sales of Shaw products in foreign markets, including the sales of foreign
subsidiaries, accounted for approximately 4.8% of total sales in 1998. No single
customer accounted for more than 3% of the company's sales during 1998.
The company's residential retail business accounted for 9.6% of the
company's total sales for 1998 and operated substantially through those
businesses acquired by the company in 1996 and 1997. On August 9, 1998, the
company exited the residential retail business.
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<PAGE>
Competition
The carpet industry is highly competitive with more than 200 companies
engaged in the manufacture and sale of carpet in the United States. Carpet
manufacturers also face competition from the hard surface floorcovering
industry. According to industry estimates, carpet accounts for approximately 70%
of the total United States production of all flooring types. The principal
methods of competition within the carpet industry are quality, style, price and
service. The company believes its strategically located regional warehouse
facilities and redistribution centers, together with its contract distribution
network, provide a competitive advantage by enabling it to supply carpet on a
timely basis to customers. The company's long-standing practice of investing in
modern, state-of-the-art equipment contributes significantly to its ability to
compete effectively on the basis of quality, style and price.
Raw Materials
The principal raw materials used by the company are nylon fiber and
filament, and synthetic backing; additional raw materials include polyester,
polypropylene and wool fibers and filaments, jute, latex and dye. During 1998,
the company experienced no significant shortages of raw materials.
Employees
At January 2, 1999, the company had approximately 30,300 full-time
employees. In the opinion of management, employee relations are good. Employees
are involved in the Quality Improvement Process, which began in 1985 as a
program designed to improve the company's products and services through
education and training. A small number of the company's commercial contractor
employees in the United States are represented by unions. Certain employees of
foreign subsidiaries are represented by unions.
Environmental Matters
Management believes the company is currently in compliance in all
material respects with applicable federal, state and local statutes and
ordinances regulating the discharge of materials into the environment and
otherwise relating to the protection of the environment. Management does not
believe the company will be required to expend any material amounts in order to
remain in compliance with these laws and regulations, or that compliance will
materially affect its capital expenditures, earnings or competitive position.
The company continued its commitment to the environment during 1998.
Because of this commitment to finding new ways of using mill waste, the company
is aggressively pursuing an environmentally friendly use for all of its waste
products. For example, future possibilities for use of fiber reinforced concrete
include road and bridge construction, military applications, building
foundations, tile, brick and concrete blocks.
Patents, Trademarks, etc.
Patent protection has not been significant to the company's business,
although the company does hold several patents covering machinery used in a
specific carpet coloring process.
4
<PAGE>
Item 2. Properties
The company's executive offices are located in Dalton, Georgia. At January 2,
1999, the company operated additional facilities as follows:
Domestic Facilities (wholesale)
Alabama Redistribution, yarn spinning and yarn extrusion
Arizona Yarn processing
Florida Redistribution
Michigan Redistribution
Missouri Redistribution
North Carolina Redistribution, primary backing manufacturing
Ohio Redistribution
Pennsylvania Redistribution
Virginia Redistribution
California Administrative, coating, dyeing, tufting and warehousing
Colorado Warehousing, redistribution
Illinois Warehousing
Massachusetts Warehousing
Minnesota Warehousing
New Jersey Warehousing
Texas Warehousing
Washington Warehousing
Georgia Administrative, distribution, carpet manufacturing, yarn
processing, yarn spinning, tufting, dyeing, coating,
finishing, rug manufacturing, sample manufacturing,
warehousing, design center and research and development
center.
South Carolina Yarn spinning
Tennessee Carpet manufacturing, yarn spinning
Domestic Facilities (commercial distribution - number of locations in
parenthesis)
Arizona Warehousing, administrative (1)
California Warehousing, administrative (7)
Colorado Warehousing, administrative (2)
Florida Warehousing, administrative (7)
Georgia Retail store, warehousing, administrative (5)
Illinois Retail store, warehousing, administrative (2)
Maryland Retail store, warehousing, administrative (1)
Massachusetts Warehousing, administrative (4)
Michigan Warehousing, administrative (2)
Minnesota Retail store, warehousing, administrative (3)
Missouri Warehousing, administrative (1)
Nevada Administrative (1)
New Hampshire Warehousing, administrative (1)
New Jersey Warehousing, administrative (1)
New York Warehousing, administrative (4)
Ohio Warehousing, administrative (4)
Oregon Warehousing, administrative (1)
Pennsylvania Warehousing, administrative (3)
Tennessee Warehousing, administrative (1)
Texas Warehousing, administrative (3)
Utah Warehousing, administrative (1)
Virginia Warehousing, administrative (3)
5
<PAGE>
Washington Warehousing, administrative (1)
Wisconsin Warehousing, administrative (1)
Foreign Facilities (facilities are located in or near the areas listed)
Victoria, Australia Yarn extrusion, yarn processing, tufting, dyeing,
coating, distribution and administrative offices
The company maintains leased warehouses and customer service facilities
in or near Dallas; Denver; Los Angeles; La Mirada, California; Seattle (2); San
Francisco; Chicago; Minneapolis; Boston; and Cranbury, New Jersey. Each leased
warehouse facility includes a sales showroom. The company believes that current
facilities are adequately insured and well maintained, substantially used and
provide adequate production capacity for current and anticipated future
operations.
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<PAGE>
Item 3. 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 is 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 in 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 is continuing. The company
is also a party to two consolidated lawsuits pending in the Superior Court of
the State of California, City and County of San Francisco, both 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 law suits 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 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.
At the end of fiscal year 1998, there were no other pending legal
proceedings to which the company was a party or to which any of its property was
subject which, in the opinion of management, were likely to have a material
adverse effect on the company's business, financial condition or results of
operations.
Item 4. Submission of Matters to Vote of Security Holders
Not applicable.
7
<PAGE>
<TABLE>
<CAPTION>
Item 4(A). Executive Officers of the Registrant
<S> <C> <C> <C>
Name Age Officer Position
Since
Robert E. Shaw 67 1967 Chairman, Chief Executive Officer and Director
W. Norris Little 67 1978 Vice Chairman and Director
Julian D. Saul 58 1998 President and Director
Vance D. Bell 47 1983 Executive Vice President, Operations
Kenneth G. Jackson 41 1996 Executive President and Chief Financial Officer
Carl P. Rollins 55 1991 Vice President, Administration
Bennie M. Laughter 47 1986 Vice President, Secretary and General Counsel
Douglas H. Hoskins 64 1978 Controller
</TABLE>
Officers of the company are elected annually by the Board of Directors.
All of the executive officers of the company except for Messrs. Saul and Jackson
have served as executive officers for the company for more than the past five
years.
Mr. Jackson joined the company in February 1996. Prior to February 1996,
Mr. Jackson had been a partner with Arthur Andersen LLP in Atlanta, Georgia.
Mr. Saul joined the company in October 1998. Prior to October 1998, Mr.
Saul was the Chief Executive Officer and Chairman of the Board of Queen Carpet
Corporation.
8
<PAGE>
PART II
Item 5. Market for the Registrant's Common Stock and Related Shareholder Matters
The high and low sales prices for the company's common stock as reported
by the New York Stock Exchange the amount of dividends paid by quarter for the
last three fiscal years are set forth on page 23 of Exhibit 13.
Reference is made to Note 2 of Notes to Consolidated Financial Statements
on page 12 of Exhibit 13 for information concerning restrictions on the payment
of cash dividends.
At March 26, 1999, there were 3,476 holders of record of the company's
common stock.
On October 6, 1998, the company issued 19,444,444 shares of its common
stock as partial merger consideration to the former shareholders of Queen Carpet
Corporation ("Queen"). In addition, in connection with the merger with Queen,
the company satisfied certain executive incentive obligations of Queen to
certain key employees of Queen which included an aggregate of 841,733 shares of
the company's common stock,. The company issued these shares in reliance upon
the exemption from the registration requirements of the Securities Act of 1933,
as amended (the "Securities Act"), provided by Section 4(2) thereof. The
19,444,444 shares issued to the former shareholders of Queen were subsequently
registered for resale under the Securities Act.
Item 6. Selected Financial Data
This information is set forth on pages 21-22 of the Exhibit 13 under the
caption "Ten-Year Financial Review."
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
This information is set forth on pages 1-4 of Exhibit 13 to this report.
Item 7 (a). Quantitative and Qualitative Disclosures About Market Risk
This information is set forth on page 2 of Exhibit 13 to this report,
under the caption "Market Risk Exposure and Derivative Financial Instruments."
Item 8. Financial Statements and Supplementary Data
This information is set forth on pages 5-23 of Exhibit 13.
Item 9. Disagreements on Accounting and Financial Disclosure
None.
9
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
Information concerning directors is incorporated by reference to
"Election of Class of Directors" on pages 3-4 of the Proxy Statement for the
Annual Meeting of Shareholders to be held on April 29, 1999. Reference is also
made to Item 4(A) of Part I of this report, "Executive Officers of the
Registrant," which information is incorporated herein.
Item 11. Executive Compensation
This information is incorporated by reference to "Executive Compensation"
on pages 6-8 of the Proxy Statement for the Annual Meeting of Shareholders.
Item 12. Security Ownership of Certain Beneficial Owners and Management
This information is incorporated by reference to "Voting Rights and
Principal Shareholders" and "Election of Directors" on pages 2 and 3-4
respectively, of the Proxy Statement for the Annual Meeting of Shareholders.
10
<PAGE>
PART IV
Item 13. Certain Relationships and Related Transactions
This information is incorporated by reference to "Certain Relationships"
on page 4 of the Proxy Statement for the Annual Meeting of Shareholders.
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) The following documents are filed as part of this report:
1. Financial Statements
o Exhibit 13 to this Form 10-K, contains the consolidated balance sheets as
of January 2, 1999 and January 3, 1998, the related consolidated
statements of income, shareholders' investment and cash flow for each of
the three years in the period ended January 2, 1999, and the related
report of Arthur Andersen LLP. These financial statements and the report
of Arthur Andersen LLP are incorporated herein by reference. The
financial statements incorporated by reference include the following:
o Consolidated Balance Sheets - January 2, 1999 and January 3, 1998
o Consolidated Statements of Income for the years ended January 2, 1999,
January 3, 1998 and December 28, 1996.
o Consolidated Statements of Shareholders' Investment for the years ended
January 2, 1999, January 3, 1998 and December 28, 1996.
o Consolidated Statements of Cash Flow for the years ended January 2, 1999,
January 3, 1998 and December 28, 1996.
2. Financial Statement Schedules
o Report of Independent Public Accountants on Financial Statement Schedule
o Schedule II - Valuation and Qualifying Accounts for the Years Ended
January 2, 1999, January 3, 1998 and December 28, 1996.
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<PAGE>
3. Exhibits incorporated by reference or filed with this report.
Number Description
3(a) Amended and Restated Articles of Incorporation. [Incorporated herein by
reference to Exhibit 3(a) to Registrant's Registration Statement filed
with the commission on December 28, 1993 (File No. 33-51719).]
3(b) Bylaws. [Incorporated herein by reference to Exhibit 3(b) to Registrant's
Registration Statement filed with the commission on December 28, 1993
(File No. 33-51714).]
4(a) Specimen form of Common Stock Certificate. [Incorporated herein by
reference to Exhibit 2 to Registrant's Report on Form 8-A filed with the
Securities and Exchange Commission on May 12, 1989 (File No. 1-6853).]
4(b) Restated Articles of Incorporation, filed as Exhibit 3(a), and the Bylaws
of Registrant, filed as Exhibit 3(b), are incorporated herein by
reference.
4(c) Rights Agreement dated as of April 10, 1989, between Registrant and
Citizens and Southern Trust Company (Georgia), N.A., as Rights Agent.
[Incorporated herein by reference to Exhibit 1 to Registrant's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
May 5, 1989 (File No. 1-6853).]
10(a) Share Transfer Agreement dated as of April 3, 1998 among the Registrant,
Shaw UK Holdings Limited and Carpet Holdings Limited. [Incorporated
herein by reference to Exhibit 99.1 to the Registrant's Current Report on
Form 8-K filed with the Securities and Exchange Commission on April 20,
1998 (File No. 1-6853).]
10(b)* Deferred Compensation Plan and form of Deferred Compensation Agreement of
Registrant as adopted in April, 1980. [Incorporated herein by reference
to the Registrant's July 2, 1994 Form 10-K filed with the Securities and
Exchange Commission (File No. 1-6853).]
10(c) Agreement and Plan of Merger dated as of June 23, 1998 among the
Registrant, The Maxim Group, Inc., CMAX Acquisition, Inc. and Shaw Carpet
Showplace, Inc., and forms of Subordinated Promissory Note and
Shareholder's Agreement attached thereto as Exhibits B and C,
respectively. [Incorporated herein by reference to Exhibit 99.1 to the
Registrant's Current Report on Form 8-K filed with the Securities and
Exchange Commission on June 26, 1998 (File No. 1-6853).]
10(d) Amendment, dated August 9, 1998, to Agreement and Plan of Merger dated as
of June 23, 1998 among the Registrant, The Maxim Group, Inc., CMAX
Acquisition, Inc. and Shaw Carpet Showplace, Inc. [Incorporated herein by
reference to Exhibit 99.2 to the Registrant's Current Report on Form 8-K
filed with the Securities and Exchange Commission on September 2,1 998
(File No. 1-6853).]
10(e) Agreement and Plan of Merger dated as of August 13, 1998 among the
registrant, Chessman Acquisition Corp., Queen Carpet Corporation, Julian
Saul, Linda Saul, Anita Saul Family Trust, Julian Saul Family Trust, and
Linda Saul Schejola Family Trust. [Incorporated herein by reference to
Exhibit 99.1 to the Registrant's Current Report on Form 8-K filed with
the Securities and Exchange Commission on August 28, 1998 (File no.
1-6853).]
10(f) First Amendment to Agreement and Plan of Merger dated as of October 6,
1998 among the Registrant, Chessman Acquisition Corp., Queen Carpet
Corporation, Julian Saul, Linda Saul, Anita Saul Family Trust, Julian
Saul Family Trust, and Linda Saul Schejola Family Trust. [Incorporated
herein by reference to Exhibit 99.2 to the Registrant's Current Report on
Form 8-K filed with the Securities and Exchange Commission on October 21,
998 (File No. 1-6853).]
10(g)* Employment Agreement dated as of October 6, 1998 between the Registrant
and Julian D. Saul.
10(h)* 1987 Incentive Stock Option Plan of the Registrant. [Incorporated herein
by reference to Exhibit A to Registrant's 1987 Proxy Statement, dated
September 22, 1987 (File No. 1-6853).]
10(i)* Form of Shaw Industries, Inc. Outside Directors Stock Plan. [Incorporated
herein by reference to Exhibit 99 to the Registrant's Registration
Statement on Form S-8 filed with the Securities and Exchange Commission
on September 1, 1998 (Reg. No. 333-62645).]
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<PAGE>
10(j)* 1989 Discounted Stock Option Plan of the Registrant. [Incorporated herein
by reference to Exhibit A to Registrant's 1989 Proxy Statement, dated
September 21, 1989 (File No. 1-6853).]
10(k)* 1992 Incentive Stock Option Plan of the Registrant. [Incorporated herein
by reference to Exhibit A to Registrant's 1992 Proxy (File No. 1-6853).]
Statement, dated September 18, 1992 (File No.1-6853).]
10(l) 1997 Stock Incentive Plan of the Registrant [Incorporated herein by
reference to Exhibit A to Registrant's 1997 Proxy (File no. 1-6853).]
10(m) Amended and Restated Credit Agreement dated as of March 16, 1998 among
the Registrant, the lenders appearing on the signature pages thereto,
NationsBank, N.A. and SunTrust Bank, Atlanta.
10(n)* Form of Shaw Industries, Inc. Nonqualified Retirement Savings Plan.
[Incorporated herein by reference to Exhibit 4(c) to the Registrant's
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission on September 4, 1998 (Reg. No. 333-62915).]
10(o) First Amendment to the Amended and Restated Credit Agreement dated as of
August 7, 1998 among the Registrant, the lenders appearing on the
signature pages thereto, NationsBank, N.A. and SunTrust Bank, Atlanta.
[Incorporated herein by reference to Exhibit 99.3 to the Registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 21, 1998 (File No. 1-6853).]
10(p) Second Amendment to the Amended and Restated Credit Agreement dated as of
October 6, 1998 among the Registrant, the lenders appearing on the
signature pages thereto, NationsBank, N.A. and SunTrust Bank, Atlanta.
[Incorporated herein by reference to Exhibit 99.4 to the Registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 21, 1998 (File No. 1-6853).]
10(q) Third Amendment to the Amended and Restated Credit Agreement dated as of
October 15, 1998 among the Registrant, the lenders appearing on the
signature pages thereto, NationsBank, N.A. and SunTrust Bank, Atlanta.
[Incorporated herein by reference to Exhibit 99.5 to the Registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 21, 1998 (File No. 1-6853).]
10(r) Transfer and Administration Agreement dated as of September 3, 1998 among
the Registrant, Shaw Funding Company, Enterprise Funding Corporation,
NationsBank, N.A. and the financial institutions from time to time
parties thereto. [Incorporated herein by reference to Exhibit 99.1 to the
Registrant's Quarterly Report on Form 10-Q filed with the Securities and
Exchange Commission on November 17, 1998 (File No. 1-6853).]
10(s) Receivables Purchase Agreement dated as of September 3, 1998 between the
Registrant and Shaw Funding Company and Form of Subordinated
Non-Negotiable Revolving Note. [Incorporated herein by reference to
Exhibit 99.2 to the Registrant's Quarterly Report on Form 10-Q filed with
the Securities and Exchange Commission on November 17, 1998 (File No.
1-6853).]
10(t) $150,000,000 Credit Agreement dated as of October 28, 1998 by and among
the Registrant, the lenders named therein, NationsBank, N.A., as
administrative agent, and SunTrust Bank, Atlanta, as documentation agent,
together with Form of Syndicate Note, Form of Guaranty and Form of
Assignment and Assumption Agreement. Incorporated herein by reference to
Exhibit 99.3 to the Registrant's Quarterly Report on Form 10-Q filed with
the Securities and Exchange commission on November 17, 1998 (File No.
1-6853).]
13 Items Incorporated by Reference from the Annual Report to Shareholders
for the fiscal year ended January 2, 1999.
21 List of Subsidiaries.
23 Consent of independent public accountants.
27 Financial Data Schedule.
*Compensatory plan or management contract required to be filed as an exhibit to
Item 14 (c) of Form 10-K.
13
<PAGE>
Shareholders may obtain copies of Exhibits without charge upon written request
to the Corporate Secretary, Shaw Industries, Inc., Mail Drop 061-18, P.O. Drawer
2128, Dalton, Georgia 30722-2128.
(b) 1. A report on Form 8-K was filed on October 21, 1998, reporting the
completion of the acquisition of Queen Carpet Corporation.
2. A report on Form 8-K/A was filed on December 21, 1998, reporting the
completion of the acquisition of Queen Carpet Corporation as amended to
include the required Condensed Consolidated Financial Data.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<CAPTION>
SHAW INDUSTRIES, INC.
<S> <C>
Date: March 30, 1999 By:/s/ ROBERT E. SHAW
------------------
Robert E. Shaw
Chairman, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date: March 30, 1999 /s/ ROBERT E. SHAW
------------------
Robert E. Shaw
Chairman, Chief Executive Officer and Director
(Principal Executive Officer)
Date: March 30, 1999 /s/ KENNETH G. JACKSON
----------------------
Kenneth G. Jackson
Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
Date: March 30, 1999 /s/ J. C. SHAW
--------------
J.C. Shaw
Chairman Emeritus and Director
Date: March 30, 1999 /s/ W. NORRIS LITTLE
--------------------
W. Norris Little
Vice Chairman and Director
Date: March 30, 1999 /s/ JULIAN D. SAUL
------------------
Julian D. Saul
President and Director
Date: March 30, 1999 /s/ WILLIAM C. LUSK, JR.
-----------------------
William C. Lusk, Jr.
Director
Date: March 30, 1999 /s/ ROBERT R. HARLIN
--------------------
Robert R. Harlin
Director
Date: March 30, 1999 /s/ THOMAS G. COUSINS
---------------------
Thomas G. Cousins
Director
Date: March 30, 1999 /s/ S.TUCKER GRIGG
------------------
S. Tucker Grigg
Director
Date: March 30, 1999 /s/ ROBERT J. LUNN
------------------
Robert J. Lunn
Director
Date: March 30, 1999 /s/ J. HICKS LANIER
-------------------
J. Hicks Lanier
Director
15
<PAGE>
Date: March 30, 1999 /s/ R. JULIAN McCAMY
--------------------
R. Julian McCamy
Director
</TABLE>
16
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
ON FINANCIAL STATEMENT SCHEDULE
To the Shareholders of
Shaw Industries, Inc.:
We have audited in accordance with generally accepted auditing standards the
financial statements of SHAW INDUSTRIES, INC. included in the Annual Report to
Shareholders incorporated by reference in this Form 10-K and have issued our
report thereon dated February 19, 1999. Our audit was made for the purpose of
forming an opinion on the basic financial statements taken as a whole. Schedule
II is the responsibility of the Company's management and is presented for
purposes of complying with the Securities and Exchange Commission's rules and is
not part of the basic financial statements. This schedule has been subjected to
the auditing procedures applied in the audit of the basic financial statements
and, in our opinion, fairly states, in all material respects, the financial data
required to be set forth therein in relation to the basic financial statements
taken as a whole.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 19, 1999
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE II
SHAW INDUSTRIES, INC.
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED JANUARY 2, 1999, JANUARY 3, 1998 AND DECEMBER 28, 1996
$ in thousands
<S> <C> <C> <C> <C>
Additions
Balance at Charged to
Beginning Costs and Balance at
of Year Expenses Deductions End of Year
--------------- ---------------- ---------------- ------------------
YEAR ENDED DECEMBER 28, 1996:
Allowance for doubtful accounts and
discounts $ 14,746 $ 108,610 $ 106,689 $ 16,667
=============== ================ ================ ==================
YEAR ENDED JANUARY 2, 1998
Allowance for doubtful accounts and
discounts $ 16,667 $ 117,271 $ 117,655 $ 16,283
=============== ================ ================ ==================
YEAR ENDED JANUARY 2, 1998
Allowance for doubtful accounts and
discounts $ 16,283 $ 123,233 * $ 118,004 $ 21,512
=============== ================ ================ ==================
</TABLE>
*Includes $6,943,000 recorded on the books of Queen Carpet Corporation at
October 6, 1998, the acquisition date.
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and effective as
of October 6th, 1998, by and between SHAW INDUSTRIES, INC., a Georgia
corporation ("Employer") and JULIAN D. SAUL, an individual resident of the State
of Georgia (the "Executive").
RECITALS
Concurrently with the execution and delivery of this Agreement,
Employer is acquiring Queen Carpet Corporation, a Georgia corporation (the
"Company") pursuant to merger of the Company with and into Employer in
accordance with that certain Agreement and Plan of Merger, dated August 13,
1998, by and among Employer, Chessman Acquisition Corp., a wholly-owned
subsidiary of Employer (the "Subsidiary"), the Company, Executive, Linda Saul,
Anita Saul Family Trust, Julian Saul Family Trust, and Linda Saul Schejola
Family Trust, as amended by that certain First Amendment to Agreement and Plan
of Merger dated of even date herewith (as amended, the "Merger Agreement"),.
Subject to the terms and conditions set forth herein, Employer desires to employ
Executive.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1. Capitalized terms not
expressly defined in this Agreement shall have the meanings ascribed to them in
the Merger Agreement.
"Agreement"--this Employment Agreement, as amended from time to time.
"Basic Compensation"--Salary and Benefits.
"Benefits"--as defined in Section 3.1(b).
"Confidential Information"--any and all:
(a) trade secrets concerning the business and affairs of
Employer or its affiliates or subsidiaries, product specifications, data,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples and inventions, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including
object code and source code), computer software and database technologies,
systems, structures, and architectures (and related formulae, compositions,
processes, improvements, devices, inventions, discoveries, concepts, designs,
methods and information); and
<PAGE>
(b) information concerning the business and affairs of
Employer or its subsidiaries or affiliates (which includes historical financial
statements, financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key personnel,
and personnel training and techniques and materials) however documented; and
(c) notes, analyses, compilations, studies, summaries, and
other material prepared by or for Employer or its subsidiaries or affiliates
containing or based, in whole or in part, on any information included in the
foregoing;
provided that the information listed in (a) through (c) above shall not be
deemed to be Confidential Information if such information is already known by
Executive or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of Executive.
"disability"--as defined in Section 6.2.
"Effective Date"--the date stated in the first paragraph of this
Agreement.
"Employee Invention"--any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by
the Executive, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the Employment Period,
that relates in any way to, or is useful in any manner in, the business then
being conducted or proposed to be conducted by Employer or its subsidiaries or
affiliates, and any such item created by the Executive, either solely or in
conjunction with others, following termination of the Executive's employment
with Employer, that is based upon or uses Confidential Information.
"Employer Board of Directors"--the board of directors of Employer.
"Employment Period"--the term of this Agreement.
"Executive Committee" -- the Executive Committee of the Board of
Directors of Employer.
"for cause"--as defined in Section 6.3.
"Noncompetition Agreement"--as defined in Section 6.3.
"person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"Post-Employment Period"-- the five (5) year period beginning on the
date of termination of the Executive's employment with the Employer.
"Proprietary Items"--as defined in Section 7.2(a)(iv).
EXHIBIT 10-G - PAGE 2
<PAGE>
"Salary"--as defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1. Employment. Employer hereby employs the Executive, and the
Executive hereby accepts employment by Employer, upon the terms and conditions
set forth in this Agreement.
2.2. Term. Subject to the provisions of Section 6, the term of the
Executive's employment under this Agreement will begin on the Effective Date and
end on the fifth anniversary of the Effective Date.
2.3. Duties. The Executive will have such duties commensurate with his
titles as are assigned or delegated to the Executive by the Employer Board of
Directors, and will serve as Executive Vice President of Employer, and President
of the Queen Carpet Division of Employer during the entire term of this
Agreement. In addition, Employer shall nominate Executive to serve on its Board
of Directors and shall cause Executive to be elected to the Board of Directors
of Employer and to be appointed to serve on the Executive Committee of the Board
of Directors of Employer. The Executive will devote his entire business time,
attention, skill, and energy exclusively to the business of Employer, will use
his best efforts to promote the success of Employer's business, and will
cooperate fully with the Employer Board of Directors in the advancement of the
best interests of Employer. Nothing in this Section 2.3, however, will prevent
the Executive from engaging in additional activities in connection with personal
investments and community affairs that are not inconsistent with the Executive's
duties under this Agreement. If the Executive is elected as a director of any of
Employer's subsidiaries or affiliates, or as an officer in addition to his
positions described herein, the Executive will fulfill his duties as such
director or officer without additional compensation.
3. COMPENSATION
3.1. Basic Compensation.
(a) Salary and Bonus. The Executive will be paid an annual
salary and bonus described on Exhibit A attached hereto (the "Salary"), which
will be payable by Employer in equal periodic installments according to
Employer's customary payroll practices, but no less frequently than monthly, and
shall be subject to and reduced by any applicable federal state and/or local
income and/or payroll tax withholding and reporting requirements.
(b) Benefits. The Executive will, during the Employment
Period, participate in such profit sharing, life insurance, hospitalization,
major medical, and other employee benefit plans of Employer as are generally
made available from time to time to executive officers of Employer, to the
extent the Executive is eligible under the terms of those plans (collectively,
the "Benefits"). Executive will receive credit with respect to Benefits for his
prior term of employment by the Company, and to the extent permissible under the
Benefits plans, any "pre-existing condition" limitation on coverage thereunder
shall be waived.
EXHIBIT 10-G - PAGE 3
<PAGE>
4. FACILITIES AND EXPENSES
Employer will furnish the Executive office space, equipment, supplies,
and such other facilities and personnel as Employer deems necessary or
appropriate for the performance of the Executive's duties under this Agreement.
In addition, Employer will provide secretarial and similar services with respect
to the reasonable additional requirements of Executive. Employer (where
appropriate) will pay the Executive's dues in such professional societies, and
will pay on behalf of the Executive (or reimburse the Executive for) reasonable
expenses incurred by the Executive at the request of, or on behalf of, Employer
in the performance of the Executive's duties pursuant to this Agreement, in
accordance with Employer's employment policies as determined from time to time
by the Employer Board of Directors, including reasonable expenses incurred by
the Executive in attending conventions, seminars, and other business meetings,
in appropriate business entertainment activities, and for promotional expenses.
The Executive shall file expense reports with respect to such expenses in
accordance with Employer's policies as determined from time to time by the
Employer Board of Directors.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to paid vacation, holidays and other
paid leave in accordance with the policies of Employer as determined from time
to time by the Employer Board of Directors. Executive will receive credit with
respect to such policies for his prior term of employment by the Company.
6. TERMINATION
6.1. Events of Termination. The Employment Period, the Executive's Basic
Compensation as set forth in Section 3.1 above and any and all other rights of
the Executive under this Agreement or otherwise as an employee of Employer will
terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in
Section 6.2) immediately upon notice from either party to the other; or
(c) for cause (as defined in Section 6.3), immediately upon
notice from Employer to the Executive, or at such later time as such notice may
specify.
6.2. Definition of Disability. For purposes of Section 6.1, the
Executive will be deemed to have a "disability" if, for physical or mental
reasons, the Executive is unable to perform the essential functions of the
Executive's duties with or without reasonable accommodation under this Agreement
for 120 consecutive days, or 180 days during any 12-month period, as determined
in accordance with this Section 6.2. The disability of the Executive will be
determined by a medical doctor selected by written agreement of Employer and the
Executive upon the request of either party by notice to the other (the "Original
Notice"). If Employer and the Executive cannot agree on the selection of a
medical doctor within 30 days of such Original Notice, each of them will select
EXHIBIT 10-G - PAGE 4
<PAGE>
a medical doctor within 45 days of such Original Notice and the two medical
doctors will select a third medical doctor within 60 days of such Original
Notice who will determine whether the Executive has a disability. The
determination of the medical doctor selected under this Section 6.2 will be
binding on both parties. The Executive must submit to a reasonable number of
examinations by the medical doctor making the determination of disability under
this Section 6.2, and the Executive hereby authorizes the disclosure and release
to Employer of such determination and all supporting medical records. If the
Executive is not legally competent, the Executive's legal guardian or duly
authorized attorney-in-fact will act in the Executive's stead, under this
Section 6.2, for the purposes of submitting the Executive to the examinations,
and providing the authorization of disclosure, required under this Section 6.2.
6.3. Definition of "For Cause". For purposes of Section 6.1, the phrase
"for cause" means: (a) the Executive's material breach of this Agreement, or the
Noncompetition Agreement entered into on the date hereof between Employer and
the Executive (the "Noncompetition Agreement") pursuant to the Merger Agreement,
in each case following notice of such breach and an opportunity to cure the same
within ten (10) days of written notice thereof; (b) the Executive's unreasonable
failure to adhere to any material or fundamental Employer policy or directive if
the Executive has been given a reasonable opportunity to comply with such policy
or directive or cure his failure to comply (for this purpose "reasonable
opportunity" shall not exceed a ten-day period following written notice of
failure to comply); (c) the appropriation (or attempted appropriation) of a
material business opportunity of Employer or any of its subsidiaries or
affiliates for personal profit and without the consent of Employer; (d) the
material misappropriation (or attempted misappropriation) of any funds or
property of Employer or any of its subsidiaries or affiliates; (e) the
conviction of, or the entering of a guilty plea or plea of no contest with
respect to, a felony, or the equivalent thereof; or (f) Executive's unreasonable
misconduct or gross negligence in performing his duties and responsibilities
hereunder to the extent materially injurious to the conduct of the business of
Employer or its affiliates or subsidiaries.
6.4. Termination Pay. Effective upon the termination of this Agreement,
Employer will be obligated to pay Basic Compensation to the Executive (or, in
the event of his death, his designated beneficiary) only as follows:
(a) Termination by Employer for cause. If Employer terminates
this Agreement for cause, the Executive will be entitled to receive his Salary
only through the date such termination is effective and the Executive will not
be entitled to receive any bonus unpaid as of such date.
(b) Termination upon Disability. If this Agreement is
terminated by either party as a result of the Executive's disability, as
determined under Section 6.2, Employer shall pay the Executive his Salary
through the remainder of the calendar month during which such termination is
effective and for the lesser of (i) six (6) consecutive months thereafter, or
(ii) the period until disability insurance benefits commence under any
disability insurance coverage furnished by Employer to the Executive.
(c) Termination upon Death. If this Agreement is terminated
because of the Executive's death, the Executive's personal representative will
be entitled to receive the Executive's Salary through the end of the calendar
month in which the Executive's death occurs.
(d) Benefits. Except as provided in Section 6.4(e) below, the
EXHIBIT 10-G - PAGE 5
<PAGE>
Executive's accrual of, or participation in plans providing for, the Benefits
will cease at the effective date of the termination of this Agreement, and the
Executive will be entitled to accrued Benefits pursuant to such plans only as
provided in such plans.
(e) Termination Other than for cause. If this Agreement is
terminated by Employer for any reason other than one provided under Section 6.1,
Executive shall be entitled to receive the Salary and Benefits provided pursuant
to Section 3.1 for the period commencing on the effective date of such
termination and ending on the fifth anniversary of the date hereof.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1. Acknowledgements by the Executive. The Executive acknowledges that
(a) during the Employment Period and as a part of his employment, the Executive
will be afforded access to Confidential Information and will create Confidential
Information on behalf of Employer and its subsidiaries and affiliates; (b)
public disclosure of such Confidential Information could have an adverse effect
on Employer or its subsidiaries or affiliates and their respective businesses;
(c) Employer has required that the Executive make the covenants in this Section
7 as a condition to consummation of the transactions contemplated by the Merger
Agreement; and (d) the provisions of this Section 7 are reasonable and necessary
to prevent the improper use or disclosure of Confidential Information and to
provide Employer with exclusive ownership of all Employee Inventions.
7.2. Agreements of the Executive. In consideration of the compensation
and benefits to be paid or provided to the Executive by Employer under this
Agreement, the Executive covenants as follows:
(a) Confidentiality.
(i) During the Employment Period and the Post-Employment
Period, the Executive will hold in confidence the Confidential
Information and will not disclose it to any person except with
the specific prior written consent of the Employer Board of
Directors or except as otherwise expressly permitted by the
terms of this Agreement.
(ii) Any trade secrets of Employer or its subsidiaries or
affiliates will be entitled to all of the protections and
benefits under applicable state trade secret law and any other
applicable law. If any information that Employer or any of its
subsidiaries or affiliates deems to be a trade secret is found
by a court of competent jurisdiction not to be a trade secret
for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for
purposes of this Agreement.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the
Executive demonstrates was or became generally available to
the public other than as a result of a disclosure by the
Executive.
EXHIBIT 10-G - PAGE 6
<PAGE>
(iv) The Executive will not remove from the premises of
Employer or its subsidiaries and affiliates (except to the
extent such removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer Board of
Directors) any Confidential Information, document, record,
notebook, plan, model, component, device, or computer software
or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Executive
recognizes that, as between Employer and its subsidiaries and
affiliates and the Executive, all of the Proprietary Items,
whether or not developed by the Executive, are the exclusive
property of Employer and its subsidiaries and affiliates. Upon
termination of this Agreement, or upon the request of the
Board of Directors during the Employment Period, the Executive
will return to Employer and its subsidiaries and affiliates
all of the Proprietary Items in the Executive's possession or
subject to the Executive's control, and the Executive shall
not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to Employer. The Executive acknowledges that all of the Executive's
writing, works of authorship, and other Employee Inventions are works made for
hire and the property of Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is determined that any
such works are not works made for hire, the Executive hereby assigns to Employer
all of the Executive's right, title, and interest including all rights of
copyright, patent, and other intellectual property rights, to or in such
Employee Inventions. The Executive covenants that he will promptly:
(i) disclose to Employer in writing any Employee
Invention;
(ii) assign to Employer or to a party designated by
Employer, at Employer's request and without additional
compensation, all of the Executive's rights to the Employee
Invention for the United States and all foreign jurisdictions;
(iii) execute and deliver to Employer such applications,
assignments, and other documents as Employer may request in
order to apply for and obtain patents or other registrations
with respect to any Employee Invention in the United States
and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of Employer's rights to any Employee Invention.
7.3. Disputes or Controversies. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by Employer,
the Executive, and their respective attorneys and experts, who will agree, in
EXHIBIT 10-G - PAGE 7
<PAGE>
advance and in writing, to receive and maintain all such information in secrecy,
except as may be limited by them in writing.
8. GENERAL PROVISIONS
8.1. Injunctive Relief and Additional Remedy. The Executive
acknowledges that the injury that would be suffered by Employer as a result of a
breach of the provisions of this Agreement (including any provision of Section
7) would be irreparable and that an award of monetary damages to Employer for
such a breach would be an inadequate remedy. Consequently, Employer will have
the right, in addition to any other rights it may have, to obtain injunctive
relief to restrain any breach or threatened breach or otherwise to specifically
enforce any provision of this Agreement, and Employer will not be obligated to
post bond or other security in seeking such relief. Without limiting Employer's
rights under this Section 8 or any other remedies of Employer, if the Executive
breaches any of the provisions of Section 7, Employer will have the right to
cease making any payments otherwise due to the Executive under this Agreement.
8.2. Covenants of Section 7 are Essential and Independent Covenants.
The covenants by the Executive in Section 7 are essential elements of this
Agreement, and without the Executive's agreement to comply with such covenants,
Employer would not have entered into the Merger Agreement, this Agreement or
employed or continued the employment of the Executive. Employer and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by
Employer.
The Executive's covenants in Section 7 are independent covenants and
the existence of any claim by the Executive against Employer under this
Agreement or otherwise, will not excuse the Executive's breach of any covenant
in Section 7.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Section 7.
8.3. Representations and Warranties by the Executive. The Executive
represents and warrants to Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the
Executive's obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: (a) violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to the
Executive; or (b) conflict with, result in the breach of any provisions of or
the termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
8.4. Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
EXHIBIT 10-G - PAGE 8
<PAGE>
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
8.5. Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, permitted assigns, heirs, and legal
representatives, including any entity with which Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
8.6. Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (effective upon written confirmation of
receipt), (b) sent by facsimile (effective upon written confirmation of
receipt), provided that a copy is mailed by registered mail, return receipt
requested, or (c) received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses and facsimile numbers set forth below (or to such other addresses and
facsimile numbers as a party may designate by notice to the other parties):
If to Employer:
Shaw Industries, Inc.
P.O. Drawer 2128
Dalton, Georgia 30722-2128
Attention: Bennie M. Laughter, Esq.
Facsimile No.: (706) 275-1442
With a copy to (which shall not constitute notice):
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Thomas R. McNeill, Esq.
Facsimile No.: (404) 572-6999
If to the Executive:
Julian D. Saul
702 Mt. Sinai Road
Dalton, Georgia 30720
Facsimile No.:
With a copy to (which shall not constitute notice):
EXHIBIT 10-G - PAGE 9
<PAGE>
Kinney, Kemp, Sponcler, Joiner & Tharpe
225 West King Street
Dalton, Georgia 30720
Attention: H. Greely Joiner, Jr., Esq.
Facsimile No.: (706) 275-6566
8.7. Entire Agreement; Amendments. This Agreement (together with
exhibits attached hereto), the Merger Agreement (together with schedules and
exhibits attached thereto), and the documents executed in connection with the
Merger Agreement, contain the entire agreement between the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
8.8. Governing Law. This Agreement will be governed by the laws
of the State of Georgia without regard to conflicts of laws principles.
8.9. Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties in the United States District Court for
the Northern District of Georgia, or if jurisdiction and venue is not proper in
federal court, then the Superior Court of Whitfield County, Georgia, and each of
the parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on either party anywhere in the world.
8.10. Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
8.11. Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
8.12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK;
SIGNATURES CONTAINED ON NEXT PAGE.]
EXHIBIT 10-G - PAGE 10
<PAGE>
IN WITNESS WHEREOF, the corporate party hereto has caused this
Agreement to be executed by its duly authorized representative, and the
individual party has executed and delivered this Agreement, as of the date above
first written above.
EMPLOYER:
SHAW INDUSTRIES, INC.
By: /s/ Bennie M. Laughter
Name: Bennie M. Laughter
Title: Vice President
EXECUTIVE:
/s/ Julian D. Saul
Julian D. Saul
EXHIBIT 10-G - PAGE 11
<PAGE>
EXHIBIT A
SALARY AND BONUS
Salary: Not less than $600,000 per annum, subject to annual
review by the Compensation Committee of the Board of
Directors.
Bonus: Senior Executive Bonus Program of the Company, as
determined from time to time, provided that the Senior
Executive Bonus Program applicable to Executive shall
be consistent with that of the President of the Company.
EXHIBIT 10-G - PAGE 12
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 16, 1998
by and among
Shaw Industries, Inc., as Borrower,
the Lenders named herein,
NATIONSBANK, N.A., as Issuing Bank and Administrative Agent,
SUNTRUST BANK, ATLANTA, as Documentation Agent
and
WACHOVIA BANK, N.A., as Managing Agent
NATIONSBANC MONTGOMERY SECURITIES LLC,
as Arranger and Co-Syndication Agent
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Co-Arranger and Co-Syndication Agent
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE 1. DEFINITIONS.......................................................................... 1
Section 1.1. Definitions............................................................... 1
Section 1.2. General................................................................... 20
ARTICLE 2. SYNDICATE LOAN AND LETTER OF CREDIT FACILITY......................................... 21
Section 2.1. Syndicate Loans........................................................... 21
Section 2.2. Borrowings of Syndicate Loans............................................. 21
Section 2.3. Disbursements of Syndicate Loans.......................................... 21
Section 2.4. Repayment of Syndicate Loans.............................................. 23
Section 2.5. Several Obligations....................................................... 23
Section 2.6. Continuation and Conversion of Syndicate Loans............................ 23
Section 2.7. Unavailability of Certain Loans; Illegality............................... 24
Section 2.8. Treatment of Affected Loans............................................... 25
Section 2.9. Compensation.............................................................. 25
Section 2.10. New and Existing Letters of Credit/Lenders' Participation................ 26
Section 2.11. Method of Issuance of Letters of Credit.................................. 28
Section 2.12. Letter of Credit Reimbursement........................................... 29
Section 2.13. Nature of Issuing Bank's Duties/Unconditional Nature of
Reimbursement Obligation. ........................................ 30
Section 2.14. Expiration or Maturity Date of Letters of Credit Past Termination Date... 31
Section 2.15. Collateral Account....................................................... 32
Section 2.16. Voluntary Reductions of the Revolving Commitment......................... 32
ARTICLE 3. COMPETITIVE BID FACILITY............................................................. 33
Section 3.1. Competitive Bid Option.................................................... 33
Section 3.2. Borrower's Request for Competitive Bid Quotes............................. 33
Section 3.3. Offer for Lenders to make Competitive Bid Quotes.......................... 34
Section 3.4. Notice to Borrower........................................................ 35
Section 3.5. Acceptance and Notice by Borrower......................................... 35
Section 3.6. Allocation by the Administrative Agent.................................... 36
Section 3.7. Lender's Obligation to Make Competitive Bid Loans......................... 36
Section 3.8. Repayment of Competitive Bid Loans........................................ 37
ARTICLE 4. SWING LINE FACILITY.................................................................. 37
Section 4.1. Swing Line Loans.......................................................... 37
Section 4.2. Repayment of Swing Line Loans............................................. 38
Section 4.3. No Lender Participation................................................... 39
<PAGE>
ARTICLE 5. OTHER LOAN AND PAYMENT PROVISIONS.................................................... 39
Section 5.1. Maximum Amount of Obligations............................................. 39
Section 5.2. Mandatory Prepayment of Loans............................................. 39
Section 5.3. Voluntary Prepayment of Loans............................................. 40
Section 5.4. Maximum Number of Interest Periods for Loans.............................. 40
Section 5.5. Rates and Payment of Interest on Loans.................................... 40
Section 5.6. Interest Upon Event of Default............................................ 41
Section 5.7. Notes..................................................................... 41
Section 5.8. Computations.............................................................. 42
Section 5.9. Usury..................................................................... 42
Section 5.10. Agreement Regarding Interest and Charges................................. 42
Section 5.11. Payments................................................................. 42
Section 5.12. Pro Rata Treatment....................................................... 43
Section 5.13. Sharing of Payments, Etc................................................. 43
Section 5.14. Facility Fee............................................................. 44
Section 5.15. Letter of Credit Fees.................................................... 45
Section 5.16. Administrative and Arrangement Fees...................................... 46
Section 5.17. Increased Costs/Capital Adequacy......................................... 46
Section 5.18. Statements of Account.................................................... 47
Section 5.19. Defaulting Lender's Status............................................... 47
Section 5.20. Administrative Agent's Reliance.......................................... 48
Section 5.21. Taxes.................................................................... 48
Section 5.22. Affected Lenders......................................................... 50
Section 5.23. Change of Lending Office................................................. 51
ARTICLE 6. CONDITIONS PRECEDENT................................................................. 51
Section 6.1. Conditions Precedent to Initial Loans and Letter of Credit................ 51
Section 6.2. Conditions Precedent to Syndicate Loans and Letters of Credit............. 53
ARTICLE 7. REPRESENTATIONS AND WARRANTIES....................................................... 54
Section 7.1. Representations and Warranties............................................ 54
Section 7.2. Survival of Representations and Warranties, Etc........................... 59
ARTICLE 8. AFFIRMATIVE COVENANTS................................................................ 59
Section 8.1. Preservation of Existence and Similar Matters............................. 60
Section 8.2. Compliance with Applicable Law............................................ 60
Section 8.3. Maintenance of Property................................................... 60
Section 8.4. Conduct of Business....................................................... 60
Section 8.5. Insurance................................................................. 60
Section 8.6. Payment of Taxes and Claims............................................... 60
Section 8.7. Visits and Inspections.................................................... 61
Section 8.8. Use of Proceeds/Letters of Credit......................................... 61
Section 8.9. Material Subsidiaries..................................................... 61
<PAGE>
Section 8.10. Environmental Matters.................................................... 61
Section 8.11. Performance of Obligations............................................... 62
ARTICLE 9. INFORMATION.......................................................................... 62
Section 9.1. Quarterly Financial Statements............................................ 62
Section 9.2. Year-End Statements....................................................... 62
Section 9.3. Compliance Certificate.................................................... 63
Section 9.4. Notice of Litigation and Other Matters.................................... 63
Section 9.5. ERISA Reporting........................................................... 64
Section 9.6. Copies of Other Reports................................................... 66
Section 9.7. Other Information......................................................... 66
ARTICLE 10. NEGATIVE COVENANTS.................................................................. 66
Section 10.1. Financial Covenants...................................................... 66
Section 10.2. Indebtedness............................................................. 67
Section 10.3. Investments/Acquisitions................................................. 68
Section 10.4. Liens/Agreements Regarding Liens/Other Matters........................... 69
Section 10.5. Restricted Payments...................................................... 70
Section 10.6. Merger, Consolidation, Sales of Assets and Other Arrangements............ 70
Section 10.7. Sale-Leasebacks.......................................................... 71
Section 10.8. Transactions with Affiliates............................................. 71
Section 10.9. Operating Leases......................................................... 72
Section 10.10. Plans................................................................... 72
Section 10.11. Fiscal Year............................................................. 73
Section 10.12. Margin Regulations...................................................... 73
ARTICLE 11. DEFAULT............................................................................. 73
Section 11.1. Events of Default........................................................ 73
Section 11.2. Remedies................................................................. 76
Section 11.3. Rights Cumulative........................................................ 77
ARTICLE 12. THE AGENT........................................................................... 78
Section 12.1. Authorization and Action................................................. 78
Section 12.2. Administrative Agent's Reliance, Etc..................................... 79
Section 12.3. NationsBank as Lender.................................................... 79
Section 12.4. Lender Credit Decision, Etc.............................................. 80
Section 12.5. Knowledge of Default..................................................... 80
Section 12.6. Indemnification.......................................................... 81
Section 12.7. Successor Administrative Agent........................................... 82
ARTICLE 13. MISCELLANEOUS....................................................................... 82
Section 13.1. Notices.................................................................. 82
Section 13.2. Expenses................................................................. 83
Section 13.3. Setoff................................................................... 84
<PAGE>
Section 13.4. Litigation/Jurisdiction/Other Matters/Waivers............................ 85
Section 13.5. Assignability and Participations......................................... 85
Section 13.6. Amendments............................................................... 88
Section 13.7. Nonliability of Agents, Arranger, Co-Arranger and Lenders................ 89
Section 13.8. Information.............................................................. 89
Section 13.9. Indemnification.......................................................... 89
Section 13.10. Survival................................................................ 92
Section 13.11. Titles and Captions..................................................... 92
Section 13.12. Severability of Provisions.............................................. 92
Section 13.13. Governing Law........................................................... 92
Section 13.14. Counterparts............................................................ 92
Section 13.15. Obligations with Respect to Loan Parties................................ 93
Section 13.16. Independent Nature of Lenders' Rights................................... 93
Section 13.17. No Fiduciary Relationship............................................... 93
Section 13.18. Limitation of Liability................................................. 93
Section 13.19. Entire Agreement........................................................ 94
Section 13.20. Construction............................................................ 94
</TABLE>
Annex I List of Lenders, Commitments, Credit Percentages
and Lending Offices
Schedule 1.1.(a) Existing Consolidated Funded Debt
Schedule 1.1.(b) Existing Letters of Credit
Schedule 1.1.(c) Existing Liens
Schedule 7.1.(b) Ownership Structure
Schedule 7.1.(h) Litigation
Schedule 7.1.(m) Environmental Non-Compliance
Schedule 7.1.(q) Affiliate Transactions
Schedule 10.3.(a) Existing Investments
Exhibit A-1 Form of Notice of Syndicate Borrowing
Exhibit A-2 Form of Request for Swing Line Borrowing
Exhibit A-3 Form of Competitive Bid Quote Request
Exhibit A-4 Form of Competitive Bid Quote
Exhibit B Form of Notice of Continuation
Exhibit C Form of Notice of Conversion
Exhibit D Form of Letter of Credit Request
Exhibit E-1 Form of Syndicate Note
Exhibit E-2 Form of Competitive Bid Note
Exhibit E-3 Form of Swing Line Note
Exhibit G Form of Opinion of Counsel to the Borrower and the
other Loan Parties
Exhibit H Form of Guaranty
<PAGE>
Exhibit I Form of Assignment and Assumption Agreement
Exhibit J Form of Compliance Certificate
<PAGE>
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 16, 1998
by and among SHAW INDUSTRIES, INC., a corporation organized under the laws of
the State of Georgia (the "Borrower"), the Lenders named herein, NATIONSBANK,
N.A., as Issuing Bank and Administrative Agent and SUNTRUST BANK, ATLANTA, as
Documentation Agent.
WHEREAS, the Borrower, certain of the Lenders and the Administrative
Agent are parties to that certain Credit Agreement dated as of March 26, 1997
(the "Existing Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Existing Credit
Agreement in certain respects and, for the convenience of the parties, restate
the Existing Credit Agreement in its entirety.
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 to amend and restate the Existing Credit Agreement 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:
"Absolute Rate" shall have the meaning assigned to such term in Section
3.3.
"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 NationsBank, 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
<PAGE>
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.
"Agents" means, collectively, the Administrative Agent, the
Documentation Agent, the Managing Agent and each of the Co-Syndication Agents
and each individually, an "Agent".
"Agreement" means this Amended and Restated 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 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 Base Applicable Margin for
Debt/EBITDA Ratio Rate Loans LIBOR Loans
- --------------------------------------------------- ---------------------------- -------------------------
Greater than 3.50 to 1.00 0% 0.75%
- --------------------------------------------------- ---------------------------- -------------------------
Less than or equal to 3.50 to 1.00 but greater
than 3.00 to 1.00 0% 0.55%
- --------------------------------------------------- ---------------------------- -------------------------
- --------------------------------------------------- -------------------------
Less than or equal to 3.00 to 1.00 but greater
than 2.50 to 1.00 0% 0.45%
- --------------------------------------------------- ---------------------------- -------------------------
- --------------------------------------------------- ---------------------------- -------------------------
Less than or equal to 2.50 to 1.00 but greater
than 2.00 to 1.00 0% 0.35%
- --------------------------------------------------- ---------------------------- -------------------------
- --------------------------------------------------- ---------------------------- -------------------------
Less than or equal to 2.00 to 1.00 0% 0.22%
- --------------------------------------------------- ---------------------------- -------------------------
</TABLE>
The Applicable Margin shall be determined by the Administrative Agent on a
quarterly basis commencing with the fiscal quarter ending on January 3, 1998.
The Consolidated Funded Debt/EBITDA Ratio shall be determined by the
Administrative Agent promptly after 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
<PAGE>
Applicable Margin shall be effective on and as of the date (the "Adjustment
Date") on which the quarterly (or annual) financial statements are required to
be delivered to the Administrative Agent; 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. Notwithstanding the
foregoing, for the period from the Effective Date through and including April 4,
1998, the Applicable Margin for Base Rate Loans shall equal 0% and the
Applicable Margin for LIBOR Loans shall equal .55%. Thereafter, the Applicable
Margin shall be adjusted from time to time as set forth above.
"Arranger" means NationsBanc Montgomery Securities LLC.
"Assignment Agreement" has the meaning given that term in Section
13.5.(c).
"Available Revolving Commitment" means, on any date of determination
thereof: (a) the Revolving Commitment in effect on such date minus (b) the sum
of: (i) the aggregate outstanding principal amount of all Loans on such date,
(ii) the aggregate Stated Amount of all Letters of Credit outstanding on such
date and (iii) the aggregate amount of Reimbursement Obligations unpaid on such
date (other than any such Reimbursement Obligations to be paid on such date).
"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.
"Beneficiary" means any third Person designated by the Borrower to whom
the Issuing Bank is to make payment or on whose order payment is to be made
under a Letter of Credit.
"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., Article 3. or Section 4.1.
"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.
<PAGE>
"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.
"Co-Arranger" means SunTrust Equitable Securities Corporation.
"Co-Syndication Agents" means, collectively, NationsBank Montgomery
Securities LLC and SunTrust Equitable Securities Corporation.
"Collateral" means any collateral security hereafter pledged by any
Loan Party to secure the Obligations or any portion thereof.
"Collateral Account" means a special non-interest bearing deposit
account maintained with the Issuing Bank and under the sole dominion and control
of the Issuing Bank.
"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
<PAGE>
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 2.16.
"Competitive Bid Borrowing Notice" has the meaning set forth in Section
3.5.
"Competitive Bid Loan" shall mean a loan made by a Lender to the
Borrower pursuant to Article 3.
"Competitive Bid Note" has the meaning set forth in Section 5.7.
"Competitive Bid Quote" shall mean an offer from a Lender pursuant to
Section 3.3. to make a Competitive Bid Loan.
"Competitive Bid Quote Request" shall have the meaning given such term
in Section 3.2. hereof.
"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.
"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
<PAGE>
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) the income (or loss) for such fiscal period of any Person prior to
<PAGE>
the date such Person becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, or such Person's
assets are acquired by the Borrower or any of its Subsidiaries; (ii) 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); (iii) 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; (iv) 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; (v) the cumulative effect of any change in
accounting principles; (vi) any net gain or loss from any discontinued
operations or the disposition thereof; (vii) 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; (viii) net gains or losses on the
collection of proceeds of life insurance policies; (ix) any write-up of any
asset; and (x) 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; (b) the Conversion or Continuation of a Loan; and (c) the
issuance of a Letter of Credit.
"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.
<PAGE>
"Date of Issuance" means the date of issuance by the Issuing Bank of a
Letter of Credit under this Agreement.
"Default" means any of the events specified in Section 11.1., 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.
"Drawing" means a drawing by a Beneficiary under any Letter of Credit.
"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 6.1.
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 13.5.; 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.
<PAGE>
"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 11.1.,
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" has the meaning set forth in the first
WHEREAS clause of this Agreement.
"Existing Letters of Credit" means the letters of credit issued by
NationsBank for the account of the Borrower or its Subsidiaries prior to the
Agreement Date, all as more particularly described on Schedule 1.1(b).
"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(c) hereof.
"Expiration Date" means, as to any Letter of Credit, the date set forth
in such Letter of Credit as the date by which the Beneficiary must have
presented such Letter of Credit, drafts, and any required documents for payment,
acceptance or negotiation in accordance with the terms of such Letter of Credit.
"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 NationsBank on such
day on such transactions as determined by the Administrative Agent.
"Fee Letters" has the meaning set forth in Section 5.16.
<PAGE>
"Fees" means the fees and commissions provided for or referred to in
Sections 5.14., 5.15. and 5.16. 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 Carpet Showplace,
Inc. and Shaw Contract Flooring Services, Inc., and after the Agreement Date,
each other Material Subsidiary required to execute and deliver a Guaranty
pursuant to Section 8.9.
"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
<PAGE>
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 (including 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 8.9.
"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
<PAGE>
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:
(a) 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 clause (a). 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;
(b) for each Competitive Bid Loan, the period commencing on the date of
the Borrowing of such Competitive Bid Loan and ending on the last day of the
period selected by the Borrower pursuant to this clause (b). The duration of
each Interest Period for a Competitive Bid Loan shall be a period of not less
than 7 and not more than 180 days commencing on a Business Day selected by the
Borrower pursuant to Section 3.2. In no event shall an Interest Period for a
Competitive Bid Loan extend beyond the Termination Date. Whenever the last day
of any Interest Period for a Competitive Bid Loan would otherwise occur on a day
other than a Business Day, the last day of such Interest Period for such
Competitive Bid Loan shall be extended to occur on the next succeeding Business
Day; and
(c) for each Swing Line Loan, the period commencing on the date of the
Borrowing of such Swing Line Loan and ending on the last day of the period
selected by the Borrower pursuant to this clause (c). The duration of each
Interest Period for a Swing Line Loan shall be a period of not more than 30 days
commencing on a Business Day selected by the Borrower pursuant to Section
4.1.(c). In no event shall an Interest Period for a Swing Line Loan extend
beyond the Termination Date. Whenever the last day of any Interest Period for a
Swing Line Loan would otherwise occur on a day other than a Business Day, the
last day of such Interest Period for such Swing Line Loan shall be extended to
occur on the next succeeding Business Day.
<PAGE>
"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.
"Issuing Bank" means NationsBank, N.A., and its successors and assigns.
"Issuing Bank Fees" has the meaning set forth in Section 5.15.
"L/C Commitment Amount" equals $25,000,000.
"Lender" means each of the financial institutions from time to time
identified as Lenders on the then current Annex I attached hereto, including the
Swing Line Lender and any Lender who makes Competitive Bid Loans, 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.
"Letter of Credit" means a standby letter of credit issued, or deemed
issued, by the Issuing Bank pursuant to Section 2.10. or 2.11. and shall include
each Existing Letter of Credit.
"Letter of Credit Facility" means the facility described in Sections
2.10. through 2.13. pursuant to which the Letters of Credit are to be issued.
<PAGE>
"Letter of Credit Request" has the meaning set forth in Section
2.11.(a).
"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, the
Revolving Credit Facility or the Letter of 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.
<PAGE>
"Loans" means, collectively, the Syndicate Loans, the Competitive Bid
Loans and the Swing Line Loans; and "Loan" means any Syndicate Loan, any
Competitive Bid Loan or any Swing Line Loan.
"Managing Agent" means Wachovia Bank, N.A.
"Mandatory Borrowing" has the meaning set forth in Section 4.2.
"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, the Issuing Bank 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 8.9.) 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).
"Money Market Rate" shall have the meaning given such term in Section
4.1.(c).
"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.
"NationsBank" means NationsBank, N.A., in its individual capacity and
not as an Agent.
"Notes" means, collectively, the Syndicate Notes, the Competitive Bid
Notes and the Swing Line Note; and "Note" means each Syndicate Note, each
Competitive Bid Note and the Swing Line Note.
<PAGE>
"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-1 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; (b) all Reimbursement Obligations;
and (c) all other present and future indebtedness, liabilities, obligations,
covenants and duties of the Borrower and the other Loan Parties owing to the
Agents, the Issuing Bank 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 sum of: (a) the
aggregate principal amount of Loans (including all Syndicate Loans, all
Competitive Bid Loans and all Swing Line Loans) outstanding at such time plus
(b) the aggregate Stated Amount of all Letters of Credit outstanding at such
time plus (c) the aggregate amount of all unpaid Reimbursement Obligations
outstanding at such time.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Payment Date" means any date the Issuing Bank disburses funds under a
Letter of Credit to or on the order of a Beneficiary in response to a Drawing.
"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 8.6.; (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
<PAGE>
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 6.1.; (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 10.2.(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 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; provided, that
the terms, provisions and structure of such program (including the legal and
organizational structure of the Receivables Subsidiary and the restrictions
imposed thereon) shall have been consented to and approved by the Administrative
Agent in advance and in writing (which approval and consent shall be in the sole
discretion of the Administrative Agent).
"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 NationsBank as its prime rate, which rate may not be the lowest rate
of interest charged by NationsBank 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: Margaret Rhodes, 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
<PAGE>
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 day of each fiscal quarter of the
Borrower, the first of which shall be April 4, 1998. The Borrower agrees that
the fiscal quarters of the Borrower shall be set in a manner such that the
fiscal year of the Borrower shall be divided into four periods of relatively
equal length.
"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.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Issuing Bank for any
Drawing pursuant to Section 2.12.
"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.
"Request for Swing Line Borrowing" means a notice in the form of
Exhibit A-2 to be delivered to the Swing Line Lender pursuant to Section 4.1.(b)
evidencing the Borrower's request for Swing Line Loans.
"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
<PAGE>
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.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of the
Borrower or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the holders of that
class; (b) any redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of the Borrower or any of its Subsidiaries now
or hereafter outstanding; and (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Borrower or any of its Subsidiaries now or
hereafter outstanding.
"Revolving Commitment" means $1,000,000,000, as the same may be reduced
from time to time pursuant to the terms of this Agreement.
"Revolving Credit Facility" means the loan and letter of credit
facility described in Article 2.
"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.
"Stated Amount" means the amount available to be drawn by a Beneficiary
under a Letter of Credit from time to time, as the Stated Amount of any such
Letter of Credit may be increased or reduced from time to time in accordance
with the terms of such Letter of Credit.
"Statement of Funds Flow" has the meaning set forth in Section 6.1.
<PAGE>
"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.
"Swing Line Amount" means $50,000,000.
"Swing Line Lender" means NationsBank, and its successors and assigns.
"Swing Line Loan" means a loan made by the Swing Line Lender to the
Borrower pursuant to Section 4.1.
"Swing Line Loan Offer" has the meaning given that term in Section
4.1.(c).
"Swing Line Note" has the meaning set forth in Section 5.7.
"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 5.7.
"Termination Date" means March 15, 2003.
"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).
"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.
<PAGE>
"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 AND LETTER OF CREDIT FACILITY
Section 2.1. Syndicate Loans.
Subject to Section 5.1. 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
<PAGE>
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 6. 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 (including any Syndicate Loan to be made pursuant to
Section 2.12.); (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
<PAGE>
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
<PAGE>
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
<PAGE>
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 5.17. (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 5.17. that gave rise to such
Conversion no longer exist (or in the case of Section 2.6., the applicable
<PAGE>
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 5.17.
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 6. 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
<PAGE>
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. New and Existing Letters of Credit/Lenders'
Participation.
(a) Subject to the terms and conditions of this Agreement, the Issuing
Bank, on behalf of the Lenders, agrees to issue and amend (including, without
limitation, to extend or renew) for the account of the Borrower for the period
from and including the Effective Date to, but excluding, the Termination Date
one or more standby letters of credit in such form and containing such terms as
may be requested from time to time by the Borrower and acceptable to the Issuing
Bank up to a maximum aggregate Stated Amount at any one time outstanding equal
to the L/C Commitment Amount; provided, however, that the initial Stated Amount
of any Letter of Credit issued pursuant to this Section shall not exceed the
Available Revolving Commitment at the time of such issuance.
(b) Each of the parties hereto: (i) acknowledges that, prior to the
Effective Date hereof, the Issuing Bank issued the Existing Letters of Credit
for the account of the Borrower and (ii) agrees that the Existing Letters of
Credit shall, for all purposes (including the Reimbursement Obligation of the
Borrower, the reimbursement obligations of each Lender owing to the Issuing Bank
pursuant to Section 2.10.(d)) be deemed to constitute a Letter of Credit issued
by the Issuing Bank pursuant to this Agreement for the account of the Borrower.
The Existing Letters of Credit shall be deemed to be issued on and as of the
Effective Date and the L/C Commitment Amount shall be deemed to have
automatically been reduced on the Effective Date in an amount equal to the
aggregate Stated Amount of the Existing Letters of Credit. The Issuing Bank
shall, upon the request of any Lender, deliver copies of any information
concerning the Existing Letters of Credit as any such Lender may reasonably
request. All of the parties hereto agree that in the event there is any
inconsistency between the terms of the letter of credit agreement or application
or reimbursement agreement with respect to an Existing Letter of Credit and this
Agreement including, without limitation, terms relating to the timing of
reimbursement, fees, standards of conduct and other matters, the terms of this
Agreement shall control.
(c) At the time of issuance, the amount, terms and conditions of each
Letter of Credit, and of any drafts or acceptances thereunder, shall be subject
to approval by the Issuing Bank. The Expiration Date of all Letters of Credit
issued hereunder must be at least two Business Days prior to the Termination
Date. Accordingly, each Letter of Credit containing an automatic renewal
<PAGE>
provision shall also contain a provision pursuant to which, notwithstanding any
other provisions thereof, it shall have a final Expiration Date no later than
two Business Days prior to the Termination Date.
(d) Immediately upon the issuance (or deemed issuance) by the Issuing
Bank of any Letter of Credit (including the Existing Letters of Credit) in
accordance with the procedures set forth in this Section, each Lender shall be
deemed to have irrevocably and unconditionally purchased and received from the
Issuing Bank, without recourse or warranty, an undivided interest and
participation to the extent of such Lender's Credit Percentage of the liability
of the Issuing Bank with respect to such Letter of Credit (including, without
limitation, all obligations of the Borrower with respect thereto, other than
amounts owing to the Issuing Bank consisting of fronting fees) and any security
therefor or guaranty pertaining thereto. Accordingly, each Lender severally
agrees that it shall be unconditionally and irrevocably liable, without regard
to the occurrence of any Default or Event of Default or any condition precedent
whatsoever, to the extent of such Lender's Credit Percentage, to reimburse the
Issuing Bank on demand in immediately available funds in Dollars for the amount
of each Drawing paid by the Issuing Bank under each Letter of Credit issued by
the Issuing Bank to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.12.; provided, however, that the Lenders shall not be
obligated to so reimburse the Issuing Bank in the event that the Issuing Bank's
honoring of such Drawing constitutes gross negligence or willful misconduct (as
determined by a court of competent jurisdiction). The failure of any Lender to
honor its obligations hereunder shall not relieve any other Lender of its duty
to honor its obligations hereunder.
(e) Each payment made by a Lender pursuant to the immediately preceding
subsection (d) shall be paid to the Administrative Agent for the account of the
Issuing Bank at the Principal Office of the Administrative Agent and shall be
treated as the purchase by such Lender of a participating interest in the
Borrower's Reimbursement Obligation under Section 2.12.(a) in an amount equal to
such payment. Each Lender, so long as it has made the payment required to be
made by it pursuant to such subsection, shall share in accordance with its
Credit Percentage in any interest which accrues pursuant to Section
2.12.(a)(ii). All amounts recovered by the Issuing Bank hereunder or under any
other Loan Document and which are applied by the Issuing Bank to the
Reimbursement Obligations of the Borrower under Section 2.12. and any letter of
credit fee paid by the Borrower pursuant to the first sentence of Section 5.15.
shall be distributed by the Issuing Bank to the Lenders who have made the
payments required to be made by them pursuant to paragraph (d) above pro rata in
accordance with their respective Credit Percentages.
(f) In addition to other remedies the Issuing Bank may have under
Applicable Law and under this Agreement, if and to the extent that any Lender
shall fail to make available to the Issuing Bank the amount required to be paid
by such Lender pursuant to the immediately preceding subsection (d), the Issuing
Bank shall be subrogated to the rights of such Lender under this Agreement to
the extent of such failure and shall thereafter (until such Lender shall make
<PAGE>
such amount available to the Issuing Bank) be entitled to the percentage of
voting rights of such Lender under this Agreement. If any Lender fails to
reimburse the Issuing Bank as provided in such subsection, such unreimbursed
amount shall bear interest from the due date thereof until such amount is paid
at the Federal Funds Rate, such interest to be payable by such Lender upon
demand therefor by the Issuing Bank.
Section 2.11. Method of Issuance of Letters of Credit.
(a) The Borrower shall give the Issuing Bank and the Administrative
Agent written notice (or telephonic notice promptly confirmed in writing) at
least five Business Days prior to the requested Date of Issuance of a Letter of
Credit (other than Existing Letters of Credit for which no further notice shall
be required), such notice to be in substantially the form of Exhibit D (a
"Letter of Credit Request"). The Borrower shall also execute and deliver such
customary letter of credit application forms as requested from time to time by
the Issuing Bank.
(b) Provided the Borrower has given the notice prescribed by the
immediately preceding subsection and subject to the other terms and conditions
of this Agreement, including without limitation the satisfaction of any
applicable conditions precedent set forth in Article 6., the Issuing Bank shall
issue the requested Letter of Credit on the requested Date of Issuance as set
forth in the applicable Letter of Credit Request on behalf of the Lenders for
the benefit of the stipulated Beneficiary and shall deliver the original of such
Letter of Credit to the Beneficiary at the address specified in the applicable
Letter of Credit Request. Upon the written request of the Borrower, the Issuing
Bank shall deliver to the Borrower a copy of each issued Letter of Credit within
a reasonable time after the Date of Issuance thereof.
(c) The Issuing Bank shall deliver to each Lender, upon the written
request of a Lender, a copy of each Letter of Credit issued hereunder and any
other information with respect to each Letter of Credit then outstanding or in
connection with any Drawing thereunder. Promptly following the end of each
calendar quarter, the Issuing Bank shall deliver to the Administrative Agent,
and upon the request of any Lender the Administrative Agent shall deliver to
each Lender, a notice describing the aggregate undrawn amount of all Letters of
Credit as at the end of such quarter. Other than as set forth in this
subsection, neither the Administrative Agent nor the Issuing Bank shall have any
duty to notify the Lenders regarding the issuance or other matters regarding
Letters of Credit issued hereunder. The failure of the Issuing Bank to perform
its requirements under this subsection shall not relieve the Lenders'
reimbursement obligations under Section 2.10.(d).
Section 2.12. Letter of Credit Reimbursement.
(a) The Borrower hereby agrees to pay to the Issuing Bank at the office
designated by the Issuing Bank (and if no office is designated by the Issuing
<PAGE>
Bank, to the Administrative Agent for the account of the Issuing Bank at the
Principal Office of the Administrative Agent):
(i) On each Payment Date, an amount in Dollars equal to the
amount paid by the Issuing Bank under the applicable Letter of Credit;
and
(ii) If any Drawing shall be reimbursed to the Issuing Bank
after 2:00 p.m. on the Payment Date, interest on any and all amounts
required to be paid pursuant to subsection (i) above from and after the
due date thereof until payment in full, payable on demand, at an annual
rate of interest equal to the Base Rate plus the Applicable Margin for
Base Rate Loans.
(b) The Borrower shall reimburse the Issuing Bank for each Drawing
under any Letter of Credit in the following manner:
(i) the Borrower shall immediately reimburse the Issuing Bank
in accordance with subsection (a) above; or
(ii) (A) if the Borrower has not reimbursed the Issuing Bank
pursuant to subsection (a) above and (B) the applicable conditions set
forth in Article 6. have been fulfilled and (C) the Available Revolving
Commitment in effect at such time exceeds the amount of the Drawing to
be reimbursed, with the proceeds of a Syndicate Loan; or
(iii) pursuant to Section 5.11., either the Issuing Bank or
the Administrative Agent may debit any deposit account of the Borrower
maintained with the Issuing Bank or the Administrative Agent and
appropriate and apply an amount of funds in such account equal to the
Reimbursement Obligations outstanding at such time.
(c) The Issuing Bank shall notify the Administrative Agent and the
Borrower of each Drawing as promptly as practical following receipt by the
Issuing Bank of such Drawing; provided, however, that failure to so notify the
Administrative Agent and the Borrower of such Drawing shall not affect the
rights of the Issuing Bank, or the obligations of the Borrower, under any Loan
Document.
(d) Unless the Borrower notifies the Issuing Bank and the
Administrative Agent to the contrary, the Borrower shall be deemed to have
requested that a Drawing be reimbursed with the proceeds of a Syndicate Loan in
the amount of such Drawing. Upon any Drawing, the Administrative Agent shall
notify the Lenders if the Borrower has elected (or deemed to have elected) to
reimburse the Issuing Bank using the proceeds of Syndicate Loans. Upon receipt
of such notice and if the applicable conditions set forth in subsection (b)(ii)
above have been satisfied, each Lender agrees to deliver to the Administrative
Agent for the account of the Issuing Bank its pro rata share of the amount of
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Syndicate Loans necessary to reimburse the Issuing Bank for any payment made by
the Issuing Bank pursuant to such Drawing (plus any interest which may accrue on
such amount pursuant to Section 2.12.(a)(ii)) not later than one Business Day
after receipt of such notice. Unless the Borrower complies with the applicable
notice requirements as set forth in Section 2.2. regarding LIBOR Loans, any
Syndicate Loan used to repay any Reimbursement Obligation shall initially be a
Base Rate Loan.
Section 2.13. Nature of Issuing Bank's Duties/Unconditional Nature of
Reimbursement Obligation.
In determining whether to honor any Drawing under any Letter of Credit,
the Issuing Bank shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit. The Borrower otherwise assumes all risks of the acts and
omissions of, or misuse of the Letters of Credit issued by the Issuing Bank by,
the respective Beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, neither the Issuing Bank nor any of the Lenders
shall be responsible for: (a) the form, validity, sufficiency, accuracy,
genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (c) the failure of the Beneficiary of any
Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy or
otherwise; (e) errors in interpretation of technical terms; (f) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit, or of the proceeds thereof; (g) the
misapplication by the Beneficiary of any Letter of Credit or the proceeds of any
Drawing under such Letter of Credit; and (h) any consequences arising from
causes beyond the control of the Issuing Bank or the Lenders. None of the above
shall affect, impair or prevent the vesting of any of the Issuing Bank's rights
or powers hereunder. Any action taken or omitted to be taken by the Issuing Bank
under or in connection with any Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create against the
Issuing Bank any liability to the Borrower or any Lender. In this connection,
the obligation of the Borrower to reimburse the Issuing Bank for any Drawing
made under any Letter of Credit shall be absolute, unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances including the following circumstances: (i) any lack of
validity or enforceability of any Letter of Credit or any other agreement; (ii)
the existence of any claim, set-off, defense or other right which the Borrower
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or any of its Affiliates, the Issuing Bank, the Administrative Agent or any
Lender may at any time have against a Beneficiary, the Issuing Bank, the
Administrative Agent, any Lender, or any other Person, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between the Borrower or any of
its Affiliates and the Beneficiary for which the Letter of Credit was procured);
(iii) any draft, demand, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(iv) payment by the Issuing Bank under any Letter of Credit against presentation
of a demand, draft or certificate or other document which does not comply with
the terms of such Letter of Credit; provided, however, that, in the case of any
payment by the Issuing Bank under any Letter of Credit, the Issuing Bank has not
acted with gross negligence or willful misconduct (as determined by a court of
competent jurisdiction) in determining that the demand for payment under such
Letter of Credit complies on its face with any applicable requirements for a
demand for payment under such Letter of Credit; (v) any other circumstance or
happening whatsoever, which is similar to any of the foregoing; or (vi) the fact
that a Default or an Event of Default shall have occurred and be continuing.
Section 2.14. Expiration or Maturity Date of Letters of Credit Past
Termination Date.
If on the date (the "Facility Termination Date") this Agreement and the
Letter of Credit Facility are terminated prior to the Expiration Date of any
Letters of Credit outstanding hereunder (whether voluntarily, by reason of the
occurrence of an Event of Default or otherwise), the Borrower shall, on the
Facility Termination Date, deposit with the Issuing Bank an amount of money
equal to the Stated Amount of such Letter(s) of Credit in the Collateral
Account. If a Drawing pursuant to such Letter of Credit occurs on or prior to
the Expiration Date of such Letter of Credit but after the Facility Termination
Date, the Borrower authorizes the Issuing Bank to use the monies deposited in
the Collateral Account to make payment to the Beneficiary with respect to such
Drawing or the payee with respect to such presentment. If no Drawing occurs on
or prior to the Expiration Date of such Letter of Credit, the Issuing Bank shall
return to the Borrower the monies deposited in the Collateral Account with
respect to such outstanding Letter of Credit on or before the date thirty
Business Days after the Expiration Date with respect to the Letter of Credit.
Section 2.15. Collateral Account.
The Collateral Account shall be in the name of the Issuing Bank as a
cash collateral account and the Issuing Bank shall have sole dominion and
control over, and sole access to, the Collateral Account. Neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall have any
right to withdraw any of the funds held in the Collateral Account. The Borrower
agrees that it will not (i) sell or otherwise dispose of any interest in the
Collateral Account or any funds held therein, or (ii) create or permit to exist
any Lien upon or with respect to the Collateral Account or any funds held
therein, except as provided in or contemplated by this Agreement. The Issuing
Bank shall exercise reasonable care in the custody and preservation of any funds
<PAGE>
held in the Collateral Account and shall be deemed to have exercised such care
if such funds are accorded treatment substantially equivalent to that which the
Issuing Bank accords other funds deposited with the Issuing Bank, it being
understood that the Issuing Bank shall not have any responsibility for taking
any necessary steps to preserve rights against any parties with respect to any
funds held in the Collateral Account. Subject to the right of the Issuing Bank
to withdraw funds from the Collateral Account as provided herein, the Issuing
Bank may in its sole discretion and without any obligation to do so whatsoever
invest funds on deposit in the Collateral Account, reinvest proceeds of any such
investments which may mature or be sold, and invest interest or other income
received from any such investments, in each case, in Cash Equivalents, as the
Issuing Bank may select or in such other investments as shall be agreed upon by
the Issuing Bank and the Borrower. Unless the Facility Termination Date has
occurred by reason of the occurrence of an Event of Default, the proceeds of
such investments shall be the property of the Borrower and the Issuing Bank
shall account to the Borrower for any such investments from time to time as
agreed upon by the Borrower and the Issuing Bank. However, if an Event of
Default has occurred and is continuing and any Obligations remain outstanding,
proceeds of investments shall be distributed to the Lenders pro rata in
accordance with their respective Credit Percentages at such times as the
Administrative Agent and the Issuing Bank shall reasonably designate. After
payment in full of all Obligations and/or the expiration of all Letters of
Credit and the distribution of monies contained therein to the Lenders as
provided above, the Issuing Bank shall deliver to the Borrower any monies
remaining in the Collateral Account.
Section 2.16. 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. COMPETITIVE BID FACILITY
Section 3.1. Competitive Bid Option.
Subject to Section 5.1. and the other terms and conditions hereof,
during the period from the Effective Date to but excluding the Termination Date,
the Borrower may from time to time request the Lenders to make offers to make
Competitive Bid Loans to the Borrower in Dollars. Each Lender may, but shall
<PAGE>
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
There may not be outstanding at any one time more than five Competitive Bid
Loans. Further, Competitive Bid Loans made pursuant to the same Competitive Bid
Quote Request and having the same Interest Period but extended by different
Lenders shall be deemed to be a single Competitive Bid Loan made hereunder. The
aggregate principal amount of Competitive Bid Loans extended by a Lender
hereunder at any time may exceed the Commitment of such Lender in effect at such
time; provided, however, that the making of Competitive Bid Loans by a Lender
shall not in any way affect, impair or reduce the obligation of such Lender to
make Syndicate Loans under Section 2.1.
Section 3.2. Borrower's Request for Competitive Bid Quotes.
In order to request offers to make Competitive Bid Loans, the Borrower
shall give the Administrative Agent written notice thereof in the form of
Exhibit A-3 (a "Competitive Bid Quote Request") no later than 11:00 a.m. on the
date one Business Day prior to the date of Borrowing proposed therein specifying
the following:
(a) the proposed date of Borrowing of such Competitive Bid
Loan, which shall be a Business Day;
(b) the aggregate principal amount of such Competitive Bid
Loan, which shall be at least $5,000,000 (and integral multiples of
$1,000,000 in excess thereof) but shall not cause the limits specified
in Section 5.1. to be violated;
(c) the Interest Period or Interest Periods applicable
thereto; and
(d) the date on which the Competitive Bid Quotes are to be
submitted if it is before the proposed date of Borrowing (the date on
which such Competitive Bid Quotes are to be submitted is called the
"Quotation Date").
The Borrower may request offers to make Competitive Bid Loans for up to two
different Interest Periods in a single Competitive Bid Quote Request; provided,
however, that the request for each separate Interest Period shall be deemed to
be a separate Competitive Bid Quote Request for a separate Borrowing. No
Competitive Bid Quote Request shall be made by the Borrower within five (5)
Business Days of any other Competitive Bid Quote Request. Any Competitive Bid
Quote Request that does not conform substantially to the requirements of this
Section may be rejected by the Administrative Agent and the Administrative Agent
shall promptly notify the Borrower of any such rejection.
Section 3.3. Offer for Lenders to make Competitive Bid Quotes.
Promptly and in any event before the close of business of the
Administrative Agent on the same Business Day of receipt of a Competitive Bid
Quote Request that is not rejected by the Administrative Agent, the
<PAGE>
Administrative Agent shall send to each of the Lenders by telecopy a copy of the
Competitive Bid Quote Request received by the Administrative Agent, which shall
constitute an offer by the Borrower to each Lender to submit Competitive Bid
Quotes offering to make Competitive Bid Loans to which such Competitive Bid
Quote Request relates.
(a) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Competitive Bid Quote Request; provided,
however, that, if the Borrower's request under Section 3.2. specified
more than one Interest Period, such Lender may make a single submission
containing one or more Competitive Bid Quotes for each such Interest
Period. Each Competitive Bid Quote must be received by the
Administrative Agent by telecopy not later than 10:00 a.m. on the
Quotation Date; provided, however, that Competitive Bid Quotes
submitted by NationsBank may only be submitted if NationsBank notifies
the Borrower of the terms of the offer or offers contained therein not
later than 9:45 a.m. on the Quotation Date. Subject to terms hereof,
any Competitive Bid Quote so made shall be irrevocable once made except
with the consent of the Administrative Agent given on the instructions
of the Borrower.
(b) Each Competitive Bid Quote shall be substantially in the
form of Exhibit A-4 and shall specify:
(i) the proposed date of Borrowing thereof;
(ii) the Interest Period or Interest Periods
therefor;
(iii) the principal amount of each Competitive Bid
Loan for which each such offer is being made, which principal
amount shall be at least $5,000,000 and integral multiples of
$1,000,000 in excess thereof;
(iv) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/1,000th of 1%) offered for each
such Competitive Bid Loan (the "Absolute Rate");
(v) the minimum amount, if any, of a Competitive Bid
Loan which may be accepted by the Borrower; and
(vi) the identity of the quoting Lender.
The Administrative Agent shall reject any Competitive Bid Quote that: (A) is not
substantially in the form of Exhibit A-4 or does not specify all of the
information required by this subsection (b); (B) contains qualifying,
conditional or similar language (other than as provided in clause (v) of this
subsection (b); (C) proposes terms other than or in addition to those set forth
in the applicable Competitive Bid Quote Request; or (D) arrives after the time
<PAGE>
specified in subsection (a) above. If any Competitive Bid Quote shall be
rejected pursuant to the immediately preceding sentence, the Administrative
Agent shall promptly notify the relevant Lender of such rejection.
Section 3.4. Notice to Borrower.
The Administrative Agent shall promptly upon receipt notify the
Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is not rejected by the Administrative Agent and is otherwise in accordance
with Section 3.3.; and (ii) of any Competitive Bid Quote that attempts to amend
or modify a previous Competitive Bid Quote submitted by such Lender with respect
to the same Competitive Bid Quote Request; provided, that any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless
such subsequent Competitive Bid Quote specifically states (and the
Administrative Agent so determines) that it is submitted solely to correct a
manifest error in such former Competitive Bid Quote and such subsequent
Competitive Bid Quote is received within the time specified in Section 3.3.(a).
The Administrative Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request,
the respective principal amounts of Absolute Rates so offered and the amount
which is required to be accepted for any Competitive Bid Loan pursuant to
Section 3.3.(b)(v).
Section 3.5. Acceptance and Notice by Borrower.
Not later than 11:00 a.m. on the Quotation Date, the Borrower shall
notify the Administrative Agent in writing of its acceptance or rejection of the
offers so notified to it pursuant to Section 3.4.; provided, however, that the
failure by the Borrower to give such notice to the Administrative Agent shall be
deemed to be a rejection of all such offers. In the case of acceptance, such
notice (a "Competitive Bid Borrowing Notice") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Competitive Bid Quote in whole or in part (subject to
the terms of Section 3.3.(b)(v) and 3.2.(b)); provided that:
(a) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(b) except as provided in Section 3.6., acceptance of offers
may only be made on the basis of ascending Absolute Rates; and
(c) the Borrower may not accept any offer that is rejected by
the Administrative Agent pursuant to the terms of this Agreement.
<PAGE>
Section 3.6. Allocation by the Administrative Agent.
If offers are made by two or more Lenders with the same Absolute Rates
for a greater aggregate principal amount than the amount in respect of which
offers are accepted for the related Interest Period, and if the Borrower elects
to accept any such offers, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not less than $1,000,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers;
provided, however, that no Lender shall be allocated a portion of any
Competitive Bid Loan which is less than the minimum amount which such Lender has
indicated that it is willing to accept. Allocations by the Administrative Agent
of the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error. The Administrative Agent shall promptly, but in any event on the
same Business Day, notify each Lender of its receipt of a Competitive Bid
Borrowing Notice and the aggregate principal amount of such Competitive Bid Loan
allocated to each participating Lender.
Section 3.7. Lender's Obligation to Make Competitive Bid Loans.
Any Lender whose offer to make any Competitive Bid Loan has been
accepted shall, not later than 12:00 noon on the date specified for the making
of such Competitive Bid Loan, make the amount of such Competitive Bid Loan
available to the Borrower on such date by depositing the same, in Dollars and in
immediately available funds, with the Administrative Agent at the Principal
Office of the Administrative Agent using the wiring instructions set forth on
such Annex I. Provided that the applicable conditions set forth in Article 6.
for Borrowing are fulfilled, the Administrative Agent will, by 2:00 p.m. on the
date of such Borrowing, make the funds so received from the Lender(s) available
to the Borrower by crediting the principal amount thereof, in immediately
available funds, to the account specified by the Borrower to the Administrative
Agent.
Section 3.8. Repayment of Competitive Bid Loans.
Unless payable earlier pursuant to the terms of this Agreement, the
Borrower shall repay the outstanding principal balance of, and all accrued but
unpaid interest on, each Competitive Bid Loan on the earlier of: (i) the end of
the Interest Period applicable thereto and (ii) the Termination Date.
ARTICLE 4. SWING LINE FACILITY
Section 4.1. Swing Line Loans.
(a) Swing Line Loans. Subject to Section 5.1. and the other terms and
conditions hereof, during the period from the Effective Date to but excluding
the Termination Date, the Swing Line Lender may (but shall have no obligation
to) make Swing Line Loans to the Borrower in an aggregate principal amount at
<PAGE>
any one time outstanding up to, but not exceeding the Swing Line Amount. Within
the limits of the preceding sentence, during the period from the Effective Date
to but excluding the Termination Date, the Borrower may borrow, repay and
reborrow Swing Line Loans in accordance with the terms and conditions hereunder.
The swing line facility established hereby is for the convenience of the
Borrower only and shall not constitute a commitment on the part of the Swing
Line Lender to make Swing Line Loans hereunder, and the Swing Line Lender may
elect not to advance Swing Line Loans, regardless of whether an Event of Default
or any other occurrence or circumstance has occurred or exists. There may not be
outstanding at any one time more than two Swing Line Loans.
(b) Procedure for Requesting Swing Line Loans. Any request by the
Borrower for a Borrowing of a Swing Line Loan from the Swing Line Lender shall
be given to the Swing Line Lender and the Administrative Agent in a prior
written notice pursuant to a Request for Swing Line Borrowing or telephonic
notice of a request for a Borrowing of Swing Line Loans. Any such telephonic
notice shall include all information to be specified in a written Request for
Swing Line Borrowing and shall be promptly confirmed by the Borrower pursuant to
a written Request for Swing Line Borrowing sent to the Swing Line Lender by
telecopy on the same day of the giving of such telephonic notice. Each Request
for Swing Line Borrowing shall be delivered to the Swing Line Lender and the
Administrative Agent before 10:00 a.m. on the proposed date of such Borrowing.
Each Request for Swing Line Borrowing or telephonic notice of such Borrowing
shall be irrevocable once given and binding on the Borrower.
(c) Swing Line Loan Offers/Acceptance by Borrower. Each offer by the
Swing Line Lender to make a Swing Line Loan in response to a Request for Swing
Line Borrowing (each a "Swing Line Loan Offer") must be submitted to the
Borrower by telecopy not later than 12:00 noon on the proposed date of Borrowing
of such Swing Line Loan and shall specify: (i) the principal amount of the Swing
Line Loan for which such offer is being made; (ii) the duration of the Interest
Period applicable thereto; and (iii) the rate of interest per annum (rounded to
the nearest 1/100th of 1%)(the "Money Market Rate") offered for such Swing Line
Loan. Not later than 15 minutes after the receipt of a Swing Line Loan Offer
from the Swing Line Lender, the Borrower shall notify the Administrative Agent
and the Swing Line Lender by telecopy of the Borrower's acceptance or rejection
of the offer by the Swing Line Lender to make a Swing Line Loan pursuant to the
terms of the Swing Line Loan Offer. Any such acceptance or rejection by the
Borrower shall be irrevocable once made. Failure of the Swing Line Lender to
receive such notice from the Borrower within such 15 minute period shall be
deemed to be a rejection by the Borrower of the offer by the Swing Line Lender
to make such Swing Line Loan.
(d) Disbursements of Swing Line Loan Proceeds. Provided that the
Borrower shall have accepted a Swing Line Loan Offer from the Swing Line Lender
to make a Swing Line Loan pursuant to subsection (c) immediately above, and
provided that the applicable conditions set forth in Article 6. for such
Borrowing are fulfilled, the Swing Line Lender will make the proceeds of such
<PAGE>
Borrowing available to the Borrower at the account specified by the Borrower in
such Request for Swing Line Borrowing no later than 3:00 p.m.
on the date specified in such Request for Swing Line Borrowing.
Section 4.2. Repayment of Swing Line Loans.
(a) Unless payable earlier pursuant to the terms of this Agreement, or
unless otherwise agreed in writing by the Borrower and the Swing Line Lender,
the Borrower shall repay the outstanding principal balance of all Swing Line
Loans, and all accrued but unpaid interest thereon, on the earlier of: (i) at
the end of the Interest Period for each such Swing Line Loan and (ii) the
Termination Date.
(b) Unless the Administrative Agent and the Borrower shall otherwise
agree, the Borrower shall be deemed to have requested that each Swing Line Loan
be repaid on the last day of the Interest Period applicable thereto with the
proceeds of a Syndicate Loan Borrowing. On the last day of each Interest Period
for a Swing Line Loan, the Administrative Agent shall notify the Lenders if the
Borrower has elected (or deemed to have elected) to repay such Swing Line Loan
with a Syndicate Loan Borrowing. Unless the Borrower shall have timely complied
with Section 2.2., such Syndicate Loan Borrowing shall initially be a Base Rate
Loan. Upon receipt of such notice, each Lender unconditionally agrees, without
regard to the occurrence of any Default or Event of Default, the reduction or
termination of the Revolving Commitment, the acceleration of any of the
Obligations, the satisfaction of any of the conditions set forth in Section
6.2., the termination of this Agreement or any other condition or occurrence
whatsoever, to make available to the Administrative Agent at the Principal
Office of the Administrative Agent, in immediately available funds, such
Lender's pro rata share of the Syndicate Loan (each such Loan, a "Mandatory
Borrowing") 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: provided, however, the Lenders shall have no obligation to
fund such Syndicate Loan if the Swing Line Lender made the applicable Swing Line
Loan to the Borrower with actual knowledge of the existence of a Default or an
Event of Default at the time of such Borrowing. The proceeds of each Mandatory
Borrowing shall be paid by the Administrative Agent directly to the Swing Line
Lender for application to the applicable Swing Line Loan.
(c) In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code of 1978, as
amended or other federal bankruptcy laws (as now or hereafter in effect) with
respect to the Borrower), then each Lender (other than the Swing Line Lender in
its capacity as such) hereby agrees that it shall unconditionally purchase from
the Swing Line Lender, without recourse or warranty, an undivided interest and
participation to the extent of such Lender's Credit Percentage of the liability
of the Swing Line Lender with respect to such Mandatory Borrowing on and as of
the date the Mandatory Borrowing would otherwise have occurred; provided that in
the event any Lender shall fail to so purchase such participation interest on
<PAGE>
the day the Mandatory Borrowing would otherwise have occurred, then the amount
of such Lender's unfunded participation interest therein shall bear interest
payable to the Swing Line Lender upon demand, at the rate equal to, if paid
within two Business Days of such date, the Federal Funds Rate, and thereafter at
a rate equal to the Base Rate.
Section 4.3. No Lender Participation.
No Lender (other than the Swing Line Lender) shall have any obligation
or right to make Swing Line Loans or otherwise participate therein.
ARTICLE 5. OTHER LOAN AND PAYMENT PROVISIONS
Section 5.1. 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 5.2. 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. Such
payment shall be applied: first, to pay all amounts of principal outstanding on
the Swing Line Loans, second, to pay all amounts of principal outstanding on the
Syndicate Loans pro rata in accordance with the first sentence of Section 5.12.,
and third, to pay all amounts of principal outstanding on the Competitive Bid
Loans pro rata in accordance with the amount of such principal owing to the
Lenders of such Loans at such time; provided, however, that any payments to be
applied to Syndicate Loans shall first be applied to Base Rate Loans and then to
LIBOR Loans in direct order of Interest Period maturities, and the remainder, if
any, shall be deposited into the Collateral Account for application to any
Reimbursement Obligations. If the Borrower is required to pay any outstanding
LIBOR Loans, Swing Line Loans or Competitive Bid 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 5.3. 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, Competitive Bid Loan or
Swing Line Loan prior to the end of the applicable Interest Period therefor, the
<PAGE>
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 5.4. Maximum Number of Interest Periods for Loans.
There may be no more than eight different Interest Periods for LIBOR
Loans outstanding at the same time. There may be no more than an aggregate of
ten separate Interest Periods for all Loans outstanding at the same time.
Section 5.5. Rates and Payment of Interest on Loans.
(a) Interest on LIBOR Loans. Subject to the provisions of Section 5.6.,
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
5.6., 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).
(c) Interest on Competitive Bid Loans. Subject to the provisions of
Section 5.6., interest on each Competitive Bid Loan shall accrue at an interest
rate per annum during the Interest Period for such Competitive Bid Loan equal to
the Absolute Rate accepted by the Borrower for such Interest Period then in
effect for such Competitive Bid Loan and shall be payable (i) for each Interest
Period applicable thereto on the last day of such Interest Period and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, (ii) upon any prepayment of such
Competitive Bid Loan (but only on the principal amount so prepaid) and (iii) at
maturity of such Competitive Bid Loan (and after maturity (whether by
acceleration or otherwise) upon demand).
<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 day of each Interest Period with respect
thereto, (ii) upon any prepayment of such Swing Line Loan (but only on the
principal amount so prepaid) and (iii) at the maturity 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.
Section 5.6. 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 5.6., be deemed
to be a Base Rate Loan.
Section 5.7. 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 E-1. 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. The obligation
of the Borrower to repay the principal of and accrued interest on the
Competitive Bid Loans shall be evidenced by promissory notes (each a
"Competitive Bid Note") in substantially the form of Exhibit E-2. Each
Competitive Bid Note delivered to a Lender shall be dated the Agreement Date and
payable to the order of such Lender. The obligation of the Borrower to repay the
principal of and accrued interest on the Swing Line Loans shall be evidenced by
a promissory note (the "Swing Line Note") in substantially the form of Exhibit
E-3. The Swing Line Note delivered to the Swing Line Lender shall be dated the
Agreement Date, payable to the order of the Swing Line Lender and shall be in a
face amount equal to the Swing Line Amount as originally in effect.
Section 5.8. 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.
<PAGE>
Section 5.9. 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 5.10. 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 5.5. The parties hereto
further agree and stipulate that all agency fees, syndication fees, facility
fees, letter of credit 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 5.11. 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 5.12. and 5.13., the
Administrative Agent, the Issuing Bank 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, the Issuing Bank or such
Lender, as the case may be (with notice to the Borrower, the other Lenders and
<PAGE>
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, any Reimbursement Obligation 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 5.12. 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 2.16., 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. The fees referred to in Section 5.16. shall be for the account of only
the Administrative Agent. The Issuing Bank Fees and fronting fees shall be for
the account of only the Issuing Bank.
Section 5.13. 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, the Issuing Bank
or the Administrative Agent may otherwise have, each Lender, the Issuing Bank
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 Issuing Bank'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, the Issuing Bank or
the Administrative Agent hereunder) which is not paid when due (regardless of
<PAGE>
whether such balances are then due to the Borrower), in which case such Lender,
the Issuing Bank 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, the Issuing Bank 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 5.12., 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 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 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:
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
- --------------------------------------------------------------------------------- --------------------------
Facility Fee Percentage
Consolidated Funded Debt/EBITDA Ratio
--------------------------
- ---------------------------------------------------------------------------------
Greater than 3.50 to 1.00 .25%
- --------------------------------------------------------------------------------- --------------------------
--------------------------
Less than or equal to 3.50 to 1.00 but greater than 3.00 to 1.00 .20%
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00 .175%
- --------------------------------------------------------------------------------- --------------------------
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00 .15%
- --------------------------------------------------------------------------------- --------------------------
- --------------------------------------------------------------------------------- --------------------------
Less than or equal to 2.00 to 1.00 .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 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 required to be delivered to the Administrative Agent and the
Lenders. Notwithstanding the foregoing, for the period from the Effective Date
through and including April 4, 1998, the facility fee shall equal .20% 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 5.15. Letter of Credit Fees.
(a) During the period any Letter of Credit (including each Existing
Letter of Credit) is outstanding, the Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders, a letter of credit fee
equal to the Applicable Margin for LIBOR Loans then in effect multiplied times
the Stated Amount of each such outstanding Letter of Credit. In addition, the
Borrower agrees to pay to the Issuing Bank for its own account (and not the
account of any Lender) a fronting fee in respect of each Letter of Credit equal
to one-eighth of one percent (0.125%) multiplied times the Stated Amount of such
outstanding Letter of Credit. The foregoing fees shall be calculated on a per
annum basis and shall be paid in advance (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.
(b) The Borrower shall also pay directly to the Issuing Bank from time
to time on demand all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Bank from time to time in like circumstances
with respect to the issuance of each Letter of Credit, Drawings, amendments and
other transactions relating thereto (collectively, the "Issuing Bank Fees"). All
Issuing Bank Fees shall be deemed fully earned upon the issuance of a Letter of
<PAGE>
Credit and shall not be refundable. Notwithstanding any term of any letter of
credit application, reimbursement agreement or other agreement entered into
between the Borrower and the Issuing Bank in connection with any Existing Letter
of Credit which term relates to fees payable in connection with such Existing
Letter of Credit, the terms of this Section regarding letter of credit fees and
fronting fees shall control from and after the Effective Date.
Section 5.16. Administrative and Arrangement Fees.
The Borrower agrees to pay (a) the administrative and other fees of the
Administrative Agent as set forth in a letter agreement by and among the
Borrower, the Administrative Agent and the Arranger and (b) the fees of the
Arranger and the Co-Arranger as set forth in a letter agreement among the
Agents, the Arranger, the Co-Arranger and the Borrower (each of the foregoing
fee letters described in this Section, the "Fee Letters").
Section 5.17. 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
<PAGE>
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 5.17., 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 2.10. 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 5.18. Statements of Account.
The Administrative Agent will account to the Borrower quarterly with a
statement of Loans, outstanding Letters of Credit, 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.
<PAGE>
Section 5.19. 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 participate to
the extent of such Lender's Credit Percentage of any Reimbursement Obligation 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 Reimbursement Obligations 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 5.20. 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 5.21. Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Lender, the Issuing Bank 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, the Issuing Bank 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), the Issuing Bank 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
<PAGE>
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, the Issuing Bank 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 5.21.) such Lender, the Issuing Bank 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
13.1., 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, the Issuing Bank 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 5.21.) paid by such
Lender, the Issuing Bank 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, the Issuing Bank 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, the Issuing
Bank 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
<PAGE>
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 5.21. shall survive the termination of the
Commitments and the payment in full of the Notes and other Obligations.
Section 5.22. Affected Lenders.
If the Borrower is obligated to pay to any Lender any amount under
Sections 5.17. or 5.21., 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 13.5., with a Commitment equal to that
<PAGE>
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 5.23. 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 5.17. and 5.21. 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 6. CONDITIONS PRECEDENT
Section 6.1. Conditions Precedent to Initial Loans and Letter of
Credit.
This Agreement, the obligation of the Lenders to make any Syndicate
Loans to the Borrower in accordance with the terms hereof and the obligation of
the Issuing Bank to issue any Letters of Credit in accordance with the terms
hereof, are 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;
<PAGE>
(ii)(A) With respect to each Loan Party, the articles or
certificate of incorporation (certified by the applicable Secretary of
State) and by-laws of such Person; (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, the other Agents, the Issuing Bank and the
Lenders in substantially the form of Exhibit G;
(iv) Copies of all Governmental Approvals 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 December 28,
1996; (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 5.7.;
(ii) a Guaranty executed by each Material Subsidiary and/or
each Subsidiary comprising the Material Subsidiary Group;
(iii) the Fee Letters;
<PAGE>
(iv) a Statement of Funds Flow executed by the Borrower and
the Administrative Agent with respect to the flow of funds in
connection with the initial funding (the "Statement of Funds Flow");
(v) (1) 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;
and (2) a UCC-1 notice filing naming the Borrower as "Debtor" and the
Administrative Agent as "Secured Party" to be filed with the Clerk of
the Superior Court of Fulton County, Georgia with respect to the
negative pledge set forth in Section 10.4.;
(c) Other Documents
(i) evidence that all Fees and other amounts due the Agents,
the Arranger, the Co-Arranger, the Issuing Bank 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 6.2. Conditions Precedent to Syndicate Loans and Letters of
Credit.
The obligation of the Lenders to make Syndicate Loans and of the
Issuing Bank to issue Letters of Credit is subject to the further condition
precedent that, as of the date of each such Loan or Date of Issuance of each
such Letter of Credit 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 or Date of Issuance of such Letter of Credit
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
<PAGE>
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 (including the making of
any Swing Line Loan and any Competitive Bid Loan) 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 7. REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties.
In order to induce the Administrative Agent, the Issuing Bank and each
Lender to enter into this Agreement, to make Loans and to issue Letters of
Credit, the Borrower represents and warrants to the Administrative Agent, the
Issuing Bank 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 7.1.(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 7.1(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.
<PAGE>
(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 G, 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 December 28, 1996, except those which have been disposed of by the Borrower
subsequent to such date in the ordinary course of business. 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 1.01(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) describes all Existing
Letters of Credit. Except as set forth in Schedule 1.1.(b), there are no letters
of credit outstanding under which the Borrower or its Subsidiaries is the
account party therefor. Schedule 1.1.(c) sets forth all Liens on any property of
the Borrower and its Subsidiaries securing any Indebtedness. No default or event
<PAGE>
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 7.1.(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 8.6. 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 December 28, 1996 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 & Co. (collectively, the "Audited Financial
Statements"); and (ii) the consolidated unaudited balance sheet of the Borrower
and its Subsidiaries as at January 3, 1997 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 (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 are complete and correct and 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 December 28, 1996, no Material Adverse Change has occurred. Each of the
Borrower, the Loan Parties and the other Subsidiaries is Solvent.
<PAGE>
(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 9.5.
(l) Absence of Defaults. Neither the Borrower, any Subsidiary thereof
nor any Loan Party is in default under 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 7.1.(m) hereof,
the Borrower, its Subsidiaries and each other Loan Party is 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 and Letters of Credit
will be used only in accordance with Sections 8.8. and 10.12.
(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
<PAGE>
"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
G, U and X of the Board of Governors of the Federal Reserve System.
(q) Affiliate Transactions. Except as set forth on Schedule 7.1.(q) or
as permitted by Section 10.8., 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 (other than a Restricted
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
<PAGE>
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, the
Issuing Bank 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 7.1.(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, the
Issuing Bank 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 7.2. 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, the Issuing Bank 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, the Issuing Bank 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
<PAGE>
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 8. 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 8.1. 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 8.2. 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 8.3. 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 8.4. 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 8.5. 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.
<PAGE>
Section 8.6. 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 8.7. 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 8.8. Use of Proceeds/Letters of Credit.
(a) Use the proceeds of the initial Loans in accordance with the
Statement of Funds Flow referred to in Section 6.1.; and (b) use the proceeds of
all subsequent Loans and all Letters of Credit only for (i) working capital,
capital expenditures and other general corporate purposes, (ii) stock
repurchases to the extent permitted under Sections 10.5. and 10.12. and (iii)
acquisitions to the extent permitted under Section 10.3.
Section 8.9. 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 H. 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.
<PAGE>
Section 8.10. Environmental Matters.
Except as described in Schedule 7.1.(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 8.11. 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 9. 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 9.1. 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
<PAGE>
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 9.2. Year-End Statements.
As soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower (commencing with the Fiscal Year of the
Borrower ending January 3, 1998), 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 & Co. 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 9.3. Compliance Certificate.
At the time the financial statements are furnished pursuant to Sections
9.1. and 9.2., 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 J 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 10.; 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 9.4. Notice of Litigation and Other Matters.
Prompt notice of:
<PAGE>
(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 9.5. 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
<PAGE>
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
<PAGE>
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 9.5., 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 9.6. 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 9.7. 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 G and 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.
<PAGE>
ARTICLE 10. 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 10.1. 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) Minimum Net Worth. Permit as at the end of each fiscal quarter of
the Borrower, its Consolidated Net Worth to be less than the sum of: (i)
$510,000,000 plus (ii) 50% of the cumulative positive Consolidated Net Income of
the Borrower earned after January 3, 1998 plus (iii) the aggregate net proceeds
received by the Borrower and its Subsidiaries from any sale or issuance of any
shares, interests, warrants, participations or other equity instruments of the
Borrower or its Subsidiaries occurring after January 3, 1998 minus (iv) the
aggregate amount of all cash and non-cash consideration paid by the Borrower and
its Subsidiaries in connection with any purchase, redemption, retirement or
other acquisition of any shares, interests, warrants, participations or other
equity instruments of the Borrower and its Subsidiaries occurring after January
3, 1998 in an amount up to, but not to exceed, $150,000,000; it being understood
that (1) any equity issuance net proceeds received by, or purchase, redemption,
retirement or other acquisition consideration paid to, a Subsidiary from the
Borrower or vice-versa shall not be included in determining the amounts
described in items (iii) and (iv) above, (2) for purposes of determining the
amount of non-cash consideration paid by Borrower and its Subsidiaries in
connection with any purchase, redemption, retirement or other acquisition of any
equity instruments, the fair market value of such consideration shall be used
or, if such non-cash consideration is in the form of a note or other debt
security, the amount of non-cash consideration shall be deemed to be the
original principal amount of the note or debt security and (3) the ability of
the Borrower and its Subsidiaries to purchase, redeem, retire or otherwise
acquire shares or other equity instruments shall continue to be subject to
Section 10.5. hereof.
(c) 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 10.2. 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;
<PAGE>
(b) Existing Consolidated Funded Debt other than Existing Consolidated
Funded Debt to be repaid with the proceeds of the initial Loans as identified in
the Statement of Funds Flow, 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) Consolidated Funded Debt incurred by the Borrower after the
Effective Date that is not secured by any Lien up to an aggregate principal
amount at any one time outstanding equal to $50,000,000;
(g) any Hedging Obligations;
(h) (i) Guaranties in existence as of the Agreement Date and disclosed
on Schedule 1.1.(a) hereof and (ii) Guaranties by the Borrower of any of the
foregoing Indebtedness provided that such Guaranteed Indebtedness is permitted
under this Section 10.2.;
(i) Indebtedness in the form of the Existing Letters of Credit; and
(j) Sold Receivables Indebtedness in an aggregate amount at any time
outstanding not to exceed $250,000,000.
Section 10.3. 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
<PAGE>
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 7.1.(b); (B) Subsidiaries
created or acquired after the Agreement Date so long as the Borrower
complies with Section 8.9. (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
10.3.(a) attached hereto;
(iii) Investments in Cash Equivalents;
(iv) Indebtedness permitted under Section 10.2.(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 8.9. 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 10.1.;
<PAGE>
(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; and
(viii) Investments permitted under Section 10.2.(h).
Section 10.4. 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;
(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; 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 10.5. Restricted Payments.
Declare or make, or permit any Subsidiary to declare or make, any
Restricted Payment; provided, however, that (a) Subsidiaries may make or declare
Restricted Payments to the Borrower and (b) the Borrower may make or declare
Restricted Payments in cash, subject to the satisfaction of each of the
following conditions on the date of such Restricted Payment after giving effect
thereto: (i) no Default or Event of Default shall have occurred and be
continuing; and (ii) the aggregate amount of Restricted Payments made or
declared during the period commencing on January 3, 1998 (the "Relevant Date")
through and including the last day of the fiscal quarter most recently ended
prior to the date of such Restricted Payment shall not exceed $15,000,000 plus
50% of the positive Consolidated Net Income, if any, of the Borrower and its
Subsidiaries for such period (treated for these purposes as a single accounting
period on a cumulative basis).
<PAGE>
Section 10.6. 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 8.9.;
(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 8.9.;
(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 10.7.;
(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 Borrower may sell Carpets International PLC on such
terms, and pursuant to such documentation, as the Administrative Agent
shall have approved in writing;
(vii) 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
<PAGE>
(viii) 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.
Section 10.7. 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 10.8. 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
7.1.(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 10.9. 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 10.10. Plans.
Neither Borrower nor any Subsidiary of Borrower shall:
<PAGE>
(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 10.11. Fiscal Year.
Change its fiscal year from that in effect as of the Agreement Date.
Section 10.12. Margin Regulations.
Use, or permit any Subsidiary to use, directly or indirectly, the
proceeds of any Loan or any Letter of Credit issued hereunder for the purpose of
purchasing or carrying any "margin stock" or "margin security" as defined in
Regulations G, 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
<PAGE>
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 G, 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
G, 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 11. DEFAULT
Section 11.1. 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 or any Reimbursement Obligation, (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 8.8. hereof or any term, covenant, condition or agreement
contained in Article 10. 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 11.1. 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 (including, without limitation, that certain Credit Agreement
dated on or about September 13, 1996 by and among Carpets International (UK)
<PAGE>
PLC, the Borrower, the Banks from time to time a party thereto and NationsBank,
N.A. London Branch, as Administrative Agent), 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 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.
<PAGE>
(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.
<PAGE>
Section 11.2. 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 11.1.(e) or 11.1.(f), (A)(1) the principal of,
and all accrued interest on, the Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of the Event of
Default and (3) 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, the Revolving Credit Facility and the Letter
of 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, (2) an amount equal to the
Stated Amount of all Letters of Credit outstanding as of the date of
the occurrence of the Event of Default and (3) 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, the Revolving Credit Facility and the Letter of 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
<PAGE>
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.
(e) Cash Collateral. (i) In the case of the occurrence of an Event of
Default specified in Sections 11.1.(e) or 11.1.(f), the Borrower shall
automatically and without further notice or demand deposit into the Collateral
Account the amounts specified in Section 2.15. hereof and (ii) in the case of
the occurrence of any other Event of Default, the Requisite Lenders may direct
the Administrative Agent, and the Administrative Agent if so directed shall,
require the Borrower to deposit into the Collateral Account the amounts
specified in Section 2.15.
Section 11.3. 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 12. THE AGENT
Section 12.1. Authorization and Action.
Each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as agent on such Lender's behalf under this
<PAGE>
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 12.2. 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
13.5.; (b) may consult with and rely upon legal counsel (including its own
counsel or counsel for the Borrower or any Loan Party), independent public
<PAGE>
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 12.3. NationsBank as Lender.
NationsBank, 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 NationsBank in
each case in its individual capacity. NationsBank 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 12.4. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that none of the Agents,
the Arranger or the Co-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 Agents, the Arranger or the
Co-Arranger hereinafter taken, including any review of the affairs of the
<PAGE>
Borrower, shall be deemed to constitute any such representation or warranty by
the Agents, the Arranger or the Co-Arranger to any Lender. Each Lender
acknowledges that it has, independently and without reliance upon the Agents,
Arranger or the Co-Arranger, any other Lender or counsel to the Agents, 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 Agents,
the Arranger or the Co-Arranger, any other Lender or counsel to the Agents 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 12.5. 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 12.1. and 12.2. 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 12.6. 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,
<PAGE>
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 12.7. 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
<PAGE>
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 13. MISCELLANEOUS
Section 13.1. 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, the Issuing Bank or NationsBank:
NationsBank, N.A.
600 Peachtree Street, 9th Floor
Atlanta, Georgia 30308
Attention: Kathryn W. Robinson
Telecopy Number: (404) 607-6467
Telephone Number: (404) 607-5887
<PAGE>
with a copy to:
NationsBank, N.A.
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Telecopy Number: (704) 386-9923
Telephone Number: (704) 386-2881
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. and 3. shall be effective only when actually received.
Section 13.2. 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 13.5.) 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
<PAGE>
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 11.1.(e) or 11.1.(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 13.3. Setoff.
Subject to Section 5.13. and in addition to, and not in limitation of,
any rights now or hereafter granted under Applicable Law, the Administrative
Agent, the Issuing Bank 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, the Issuing Bank 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 11.2., and although such obligations
shall be contingent or unmatured.
Section 13.4. Litigation/Jurisdiction/Other Matters/Waivers.
EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG THE BORROWER, THE AGENTS, THE ISSUING BANK OR ANY OF THE LENDERS WOULD
BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT. ACCORDINGLY, TO THE
<PAGE>
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ISSUING BANK, THE
AGENTS 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 AGENTS, THE ISSUING BANK 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 AGENTS, THE ISSUING BANK OR ANY LENDER OR THE ENFORCEMENT
BY THE AGENTS, THE ISSUING BANK 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 13.5. 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
<PAGE>
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 I (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 5.2., 5.21., 13.2., and 13.9. 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
5.21.
(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 Documentation Agent and 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
<PAGE>
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 a Competitive Bid Note payable to the
order of the assignee in an amount equal to the Revolving Commitment 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
2.10., 5.17. and 5.21. and the right of set-off contained in Section 13.3.; (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.
<PAGE>
Section 13.6. 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 12. (other than the provisions of Section 12.7.).
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.
<PAGE>
Section 13.7. Nonliability of Agents, Arranger, Co-Arranger and
Lenders.
The relationship between the Borrower and the Lenders shall be solely
that of borrower and lender. Neither the Agents, the Arranger, the Co-Arranger
nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agents, the Arranger, the Co-Arranger 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 13.17. and
13.18., the parties hereto acknowledge and agree that the Arranger, the
Co-Arranger, the Co-Syndication Agents and the Documentation Agent (in their
capacities as such) shall have no obligations, duties or liabilities under this
Agreement or the other Loan Documents.
Section 13.8. 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 13.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent and the other Agents, the Issuing Bank, the
Arranger, the Co-Arranger, 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
<PAGE>
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 or issuance of Letters of Credit hereunder; (iii) any actual
or proposed use by the Borrower of the proceeds of the Loans or Letters of
Credit; (iv) any Agents', the Issuing Bank's or any Lender's entering into this
Agreement; (v) the fact that the Agents, the Issuing Bank and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower and
the Subsidiaries; (vi) the fact that the Agents, the Issuing Bank 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 Agents,
the Issuing Bank 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,
the Issuing Bank 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
<PAGE>
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.
<PAGE>
(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 13.10. Survival.
Notwithstanding any termination of this Agreement, or of the other Loan
Documents, the indemnities and other reimbursement obligations to which the
Agents, the Issuing Bank and the Lenders are entitled under the provisions of
Sections 5.2., 5.21., 13.2., and 13.9. and any other provision of this Agreement
and the other Loan Documents, the waivers of jury trial and submissions to
jurisdiction contained in Section 13.4., shall continue in full force and effect
and shall protect the Agents, the Issuing Bank and the Lenders against events
arising after such termination as well as before.
Section 13.11. 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.
Section 13.12. 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 13.13. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA.
Section 13.14. 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.
<PAGE>
Section 13.15. 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 13.16. 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 13.17. 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 Agents, the Issuing Bank or any Lender to the Borrower
or any other Loan Party or (b) by the Agents or the Issuing Bank to any Lender.
Section 13.18. Limitation of Liability.
Neither the Agents, the Issuing Bank, the Arranger, the Co-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 Agents, the Arranger, the
Co-Arranger, the Issuing Bank 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 13.19. 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,
<PAGE>
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 13.20. Construction.
The Administrative Agent and the other Agents, the Issuing Bank, 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 and the other Agents, the Issuing Bank, the Borrower
and each Lender.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated 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: /s/
Title:
THE ADMINISTRATIVE AGENT:
NATIONSBANK, N.A., as Administrative Agent
By: /s/
Title:
THE ISSUING BANK:
NATIONSBANK, N.A., as Issuing Bank
By: /s/
Title:
THE DOCUMENTATION AGENT:
SUNTRUST BANK, ATLANTA, as Documentation Agent
By: /s/
Title:
By: /s/
Title:
<PAGE>
[Signature Page to Shaw Amended and Restated Credit Agreement dated as
of March 16, 1998]
THE LENDERS:
NATIONSBANK, N.A., as a Lender and Swing
Line Lender
By: /s/
Title:
SUNTRUST BANK, ATLANTA
By: /s/
Title:
By: /s/
Title:
WACHOVIA BANK, N.A.
By: /s/
Title:
FIRST UNION NATIONAL BANK
By: /s/
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
Title:
<PAGE>
[Signature Page to Shaw Amended and Restated Credit Agreement dated as
of March 16, 1998]
THE FUJI BANK, LIMITED, ATLANTA AGENCY
By: /s/
Title:
SOUTHTRUST BANK, N.A.
By: /s/
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/
Title:
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: /s/
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/
Title:
<PAGE>
Annex I-6
ANNEX I TO CREDIT AGREEMENT
LIST OF LENDERS, COMMITMENTS, CREDIT
PERCENTAGES AND LENDING OFFICES
Administrative Agent:
NationsBank, N.A.
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Telecopy Number: (704) 386-9923
Telephone Number: (704) 386-2881
Wiring Instructions for Disbursements and Payments of Loans:
NationsBank, N.A.
ABA #061000052
Corporate Credit Support
Reference: Shaw Industries, Inc.
Account #136621-10109970
Lenders:
NationsBank, N.A.
Lending Office (All Types of Loans): Initial Commitment Amount:
600 Peachtree Street, 9th Floor $270,000,000
Atlanta, Georgia 30308
Attn: Kathryn W. Robinson Initial Credit Percentage: 27.0%
Telecopier: (404) 607-6467
Telephone: (404) 607-5887
Wiring Instructions: Same as above
<PAGE>
SunTrust Bank, Atlanta
Lending Office (All Types of Loans): Initial Commitment Amount:
25 Park Place $245,000,000
Atlanta, Georgia 30303
Attn: Bradley J. Staples Initial Credit Percentage: 24.5%
Telecopier: (404) 588-8833
Telephone: (404) 230-5099
Wiring Instructions:
SunTrust Bank, Atlanta
ABA #061000104
Credit: Corporate Banking Operations Wire Clearing
Account #970100112
Reference: Shaw Industries, Inc.
Attention: Isabelle Trentham, Ext. 8963
Wachovia Bank, N.A.
Lending Office (All Types of Loans): Initial Commitment Amount:
191 Peachtree Street, 30th Floor $235,000,000
Atlanta, Georgia 30303
Attn: Russell W. Boozer Initial Credit Percentage: 23.5%
Telecopier: (404) 332-6920
Telephone: (404) 332-5755
Wiring Instructions:
Wachovia Bank, N.A.
ABA #06100010
Account #18-800-621
Attention: Ramona Hix
<PAGE>
First Union National Bank
Lending Office (All Types of Loans): Initial Commitment Amount:
999 Peachtree Street, 6th Floor $75,000,000
Atlanta, Georgia 30309
Attn: Mike Murphy Initial Credit Percentage: 7.5%
Telecopier: (404) 225-4255
Telephone: (404) 225-4258
Wiring Instructions:
First Union National Bank of Georgia
ABA #063000021
Account #GL145916-2008
Reference: Shaw Industries, Inc.
Attention: Jackie Warner
The First National Bank of Chicago
Lending Office (All Types of Loans): Initial Commitment Amount:
One First National Plaza $50,000,000
Suite 0324
Chicago, Illinois 60670 Initial Credit Percentage: 5.0%
Attn: Judy Cornwell
Telecopier: (312) 732-5296
Telephone: (312) 732-6274
Wiring Instructions:
The First National Bank of Chicago
ABA #071000013
Account #75217653/DES
Reference: Shaw Industries, Inc.
Attn: Kathy Murphy
<PAGE>
The Fuji Bank, Limited, Atlanta Agency
Lending Office (All Types of Loans): Initial Commitment Amount:
Marquis One Tower, Suite 2100 $25,000,000
245 Peachtree Centre Avenue, N.E.
Atlanta, Georgia 30303 Initial Credit Percentage: 2.5%
Attn: Erin Medlin
Telecopier: (404) 653-2119
Telephone: (404) 215-3315
Wiring Instructions:
The Fuji Bank, Limited (New York)
ABA #026009700 For further credit to:
Account #725000 (Fuji Bank Atlanta)
SouthTrust Bank, N.A.
Lending Office (All Types of Loans): Initial Commitment Amount:
600 W. Peachtree Street $25,000,000
Suite 2700
Atlanta, Georgia 30308 Initial Credit Percentage: 2.5%
Attn: Barbara Gewert
Telecopier: (404) 853-5766
Telephone: (404) 853-5776
Wiring Instructions:
SouthTrust Bank, N.A.
Atlanta, Georgia
ABA #061-000-256
Account #8850/164023
Upon receipt notify
Elfrida Crawford at (404) 853-5775
<PAGE>
The Bank of Tokyo-Mitsubishi, Ltd.
Lending Office (All Types of Loans): Initial Commitment Amount:
133 Peachtree Street, N.E. $25,000,000
Suite 4970
Atlanta, Georgia 30303-1808 Initial Credit Percentage: 2.5%
Attn: Brandon Meyerson
Telecopier: (404) 577-1155
Telephone: (404) 577-2960
Wiring Instructions:
The Bank of Tokyo-Mitsubishi, Ltd.
ABA #026009632
Account #30001680
Attn: BTM Atlanta Agency
Banque Nationale de Paris, Houston Agency
Lending Office (All Types of Loans): Initial Commitment Amount:
333 Clay Street $25,000,000
Suite 3400
Houston, Texas 77002 Initial Credit Percentage: 2.5%
Telecopier: (713) 659-1414
Telephone: (713) 951-1224
Attn: Michael Shryock
Wiring Instructions:
BNP New York
ABA #026007689
Account #141011-001-69
Attn: Donna Rose
Ref.: Shaw Industries, Inc.
<PAGE>
The Long-Term Credit Bank of Japan, Ltd.
Lending Office (All Types of Loans): Initial Commitment Amount:
165 Broadway $25,000,000
New York, New York
Attn: Antoinette Pontecorvo Initial Credit Percentage: 2.5%
Telecopier: (212) 335-4441
Telephone: (212) 335-4801
Wiring Instructions:
The Chase Manhattan Bank
New York, New York
ABA #021000021
Account #544-7-75066
Account Name: The Long-Term Credit
Bank of Japan, New York Branch
Total Commitments = $1,000,000,000
<PAGE>
EXHIBIT A-1
FORM OF NOTICE OF SYNDICATE BORROWING
-----------, -----
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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"), NationsBank, N.A., as
Issuing Bank and 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;
<PAGE>
(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 7
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 8.8. 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>
EXHIBIT A-2
FORM OF REQUEST FOR SWING LINE BORROWING
-----------, -----
NationsBank, N.A., as Administrative Agent
and as Swing Line Lender
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank and
Administrative Agent (the "Administrative Agent") and SunTrust Bank, Atlanta, as
Documentation Agent.
Pursuant to Section 4.1(b) of the Credit Agreement, the Borrower hereby
requests that the Swing Line Lender make an offer to make a Swing Line Loan in
an amount equal to $_____________ to the Borrower.
The Borrower hereby requests that the Interest Period for the Swing
Line Loan to be made available by the Swing Line Lender pursuant hereto be for a
duration of ________ days.
The Borrower requests that the Swing Line Loan be made available to the
Borrower on __________, _____.
If the Swing Line Lender agrees to make the Swing Line Loan requested
hereby, the Administrative Agent is instructed to make the proceeds of such
Swing Line 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 Swing Line Loan Borrowing, and (iii) after
giving effect to the Swing Line Loan requested hereby:
<PAGE>
(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 7
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 8.8. of the Credit Agreement.
If notice of this Swing Line Borrowing has been given previously by
telephone, then this notice should be considered a written confirmation of such
telephone notice as required by Section 3.1(b) of the Credit Agreement.
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
EXHIBIT A-3
FORM OF COMPETITIVE BID QUOTE REQUEST
-----------, -----
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank and
Administrative Agent (the "Administrative Agent") and SunTrust Bank, Atlanta, as
Documentation Agent.
Pursuant to Section 3.2 of the Credit Agreement, the Borrower hereby
requests offers for a Competitive Bid Loan Borrowing in an aggregate principal
amount of $_____________.
The Borrower requests that the Competitive Bid Loan requested hereby be
made available to the Borrower on __________, _____.
The Borrower further requests that the [Interest Period for such
Competitive Bid Loan be for a duration of ________ days][offers to make such
Competitive Bid Loan be for an Interest Period of _______ days and an Interest
Period of _______ days].
The Competitive Bid Quotes requested hereby should be submitted no
later than the close of business on ____________, _____.
The Administrative Agent is instructed to make the proceeds of such
Competitive Bid 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 Borrowing, and (iii) after giving effect to
the Competitive Bid Loan requested hereby:
<PAGE>
(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 7
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 8.8. of the Credit Agreement.
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
EXHIBIT A-4
FORM OF COMPETITIVE BID QUOTE
-----------, -----
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Shaw Industries, Inc.
Dalton, Georgia
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank and
Administrative Agent (the "Administrative Agent") and SunTrust Bank, Atlanta, as
as Documentation Agent. This Competitive Bid Quote is given in accordance with
Section 3.3 of the Credit Agreement.
In response to the Borrower's request for offers to make Competitive
Bid Loan(s) dated _____________, ____, we hereby make the following Competitive
Bid Quote offering to make Competitive Bid Loans(s) to the Borrower on
___________, ____ on the following terms:
<TABLE>
<CAPTION>
- ----------------------- -------------------- -------------------- -------------------- --------------------
<S> <C> <C> <C> <C>
Quotation Date1 Principal Amount2 Minimum Amount Interest Period3 Rate
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
- ----------------------- -------------------- -------------------- -------------------- --------------------
</TABLE>
- --------
1 As specified in the related Competitive Bid Quote Request.
2 The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
or a larger multiple of $1,000,000.
3 A period of not less than 7 and not more than 180 days after the making
of such Competitive Bid Loan, as specified in the related Competitive
Bid Quote Request.
<PAGE>
_________We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) (is/are) accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
By:_________________________________________________
Title:
Dated: _____________, ____
<PAGE>
EXHIBIT B
FORM OF NOTICE OF CONTINUATION
--------------, -----
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank and
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.
<PAGE>
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>
EXHIBIT C
FORM OF NOTICE OF CONVERSION
------------, -----
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank and
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.
<PAGE>
(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>
EXHIBIT D
FORM OF LETTER OF CREDIT REQUEST
------------, -----
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, Agency Services
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank (the
"Issuing Bank") and Administrative Agent (the "Issuing Bank") and SunTrust Bank,
Atlanta, as Documentation Agent.
Pursuant to Section 2.8. of the Credit Agreement, the Borrower hereby
requests that the Issuing Bank issue a Letter of Credit in an amount equal to
$_____________ for the benefit of ___________________ (the "Beneficiary") for
the purpose of
- --------------------.
The Borrower requests that the Letter of Credit be made available to
the Beneficiary on __________, _____.
The Borrower hereby further certifies that (i) as of the date hereof,
(ii) as of the date of the requested Letter of Credit, and (iii) after giving
effect to the Letter of Credit 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 7
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
<PAGE>
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 8.8. of the Credit Agreement.
If notice of this Borrowing has been given previously by telephone,
then this notice should be considered a written confirmation of such telephone
notice as required by Section 2.8. of the Credit Agreement.
SHAW INDUSTRIES, INC.
By:
Title:
<PAGE>
EXHIBIT E-1
FORM OF SYNDICATE NOTE
$________________ March 16, 1998
FOR VALUE RECEIVED, the undersigned, SHAW INDUSTRIES, INC., a
corporation organized under the laws of the State of Georgia (the "Borrower"),
promises to pay to the order of ___________________ [Payee Lender] (the
"Lender") in c/o NationsBank, N.A., as Administrative Agent, 101 North Tryon
Street, 15th Floor, Charlotte, North Carolina 28255-0001, Attention: Margaret
Rhodes, Agency Services, in lawful money of the United States of America and in
immediately available funds, the principal amount of ________________ Dollars
($_____________), 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 5.5. 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
Amended and Restated Credit Agreement dated as of March 16, 1998 (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"),
NationsBank, N.A., as Issuing Bank and 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]4 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.
- ---------
4 To be used for replacement of Surrendered Notes.
<PAGE>
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 11.1.(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 11.1(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 13.6. of
the Credit Agreement.]5
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 13.4 AND 13.9. OF THE CREDIT AGREEMENT ARE
HEREBY EXPRESSLY INCORPORATED BY REFERENCE HEREIN.
Attest: SHAW INDUSTRIES, INC.
By: _________ By:
Title:_______ Title:
(CORPORATE SEAL)
- ---------
5 To be used for replacement of Surrendered Notes.
<PAGE>
EXHIBIT E-2
FORM OF COMPETITIVE BID NOTE
$________________ March 16, 1998
FOR VALUE RECEIVED, the undersigned, SHAW INDUSTRIES, INC., a corporation
organized under the laws of the State of Georgia (the "Borrower"), promises to
pay to the order of ___________________ [Payee Lender] (the "Lender") in c/o
NationsBank, N.A., as Administrative Agent, 101 North Tryon Street, 15th Floor,
Charlotte, North Carolina 28255-0001, Attention: Margaret Rhodes, Agency
Services, in lawful money of the United States of America and in immediately
available funds, the principal amount of ________________ Dollars
($_____________), or such lesser principal amount, as may then constitute the
unpaid aggregate principal amount of the Competitive Bid Loans made by the
Lender to the Borrower pursuant to the Credit Agreement (as defined below),
together with interest, as described below.
The Borrower further agrees to pay interest on the unpaid principal
amount owing hereunder from time to time in like money at the offices of the
Administrative Agent specified above at the Absolute Rate accepted by the
Borrower for the applicable Competitive Bid Loan, all as provided in the Credit
Agreement.
Unless due earlier pursuant to the terms of the Credit Agreement: (i)
accrued interest hereon shall be due and payable on the dates specified in
Section 5.5(c) of the Credit Agreement and (ii) the principal balance of the
Competitive Bid Loans evidenced hereby shall be due and payable on the dates
specified in Section 3.8 of the Credit Agreement.
This Note is one of the Competitive Bid Notes referred to in that
certain Amended and Restated Credit Agreement dated as of March 16, 1998 (as
amended, restated, supplemented or otherwise modified from time to time in
accordance with its terms, the "Credit Agreement") among the Borrower, the
Lenders named therein, NationsBank, N.A., as Issuing Bank and 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). Capitalized terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of
Competitive Bid Loans upon the terms and conditions specified therein.
<PAGE>
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 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 13.4 AND 13.9. OF THE CREDIT AGREEMENT ARE
HEREBY EXPRESSLY INCORPORATED BY REFERENCE HEREIN.
Attest: SHAW INDUSTRIES, INC.
By: _________ By:
Title:_______ Title:
(CORPORATE SEAL)
<PAGE>
EXHIBIT E-3
FORM OF SWING LINE NOTE
$50,000,000 March 16, 1998
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 NATIONSBANK, N.A. (the "Lender") in c/o NationsBank, N.A.,
as Administrative Agent (the "Administrative Agent"), 101 North Tryon Street,
15th Floor, Charlotte, North Carolina 28255-0001, Attention: Margaret Rhodes,
Agency Services, in lawful money of the United States of America and in
immediately available funds, the principal amount of Fifty Million Dollars
($50,000,000), or such lesser principal amount, as may then constitute the
unpaid aggregate principal amount of the Swing Line Loans made by the Lender to
the Borrower pursuant to the Credit Agreement (as defined below), together with
interest, as described below.
The Borrower further agrees to pay interest on the unpaid principal
amount owing hereunder from time to time in like money at the offices of the
Administrative Agent specified above at the Money Market Rate accepted by the
Borrower for the applicable Swing Line Loan, all as provided in the Credit
Agreement.
Unless due earlier pursuant to the terms of the Amended and Restated
Credit Agreement: (i) accrued interest hereon shall be due and payable on the
dates specified in Section 5.5(d) of the Credit Agreement and (ii) the principal
balance of the Swing Line Loans evidenced hereby shall be due and payable on the
dates specified in Section 4.2(a) of the Credit Agreement.
This Note is the Swing Line Note referred to in that certain Amended
and Restated Credit Agreement dated as of March 16, 1998 (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Credit Agreement") among the Borrower, the Lenders named therein,
NationsBank, N.A., as Issuing Bank and 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).
Capitalized terms used but not defined in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Swing
Line Loans upon the terms and conditions specified therein.
<PAGE>
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 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 13.4 AND 13.9. OF THE CREDIT AGREEMENT ARE
HEREBY EXPRESSLY INCORPORATED BY REFERENCE HEREIN.
Attest: SHAW INDUSTRIES, INC.
By: _________ By:
Title:_______ Title:
(CORPORATE SEAL)
<PAGE>
EXHIBIT G
OPINION OF COUNSEL TO THE BORROWER
AND THE OTHER LOAN PARTIES
March 16, 1998
NationsBank, N.A., as Administrative Agent
600 Peachtree Street
Atlanta, Georgia 30308
Each of the Issuing Bank and the other Agents
under the below-referenced Credit Agreement
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
Amended and Restated Credit Agreement dated as of March 16, 1998 (the "Credit
Agreement") by and among the Borrower, the Lenders named therein (the
"Lenders"), NationsBank, N.A., as Issuing Bank and 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 6.1 of the Credit
Agreement.
(The foregoing items (a) through (d) are referred to herein as the "Loan
Documents".)
<PAGE>
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;
<PAGE>
(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 7.1(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.
9._______Assuming that Borrower applies the proceeds of the Loans and
as provided in the Credit Agreement, the transactions contemplated by the Loan
<PAGE>
Documents do not violate the provisions of Regulations G, T, U or X of the Board
of Governors of the Federal Reserve System.
[Customary Qualifications/Assumptions/Limitations]
_________ Very truly yours,
<PAGE>
EXHIBIT H
FORM OF GUARANTY
THIS GUARANTY dated as of ______________, ____ executed and delivered
by ______________________________ (the "Guarantor") in favor of NationsBank,
N.A., as Administrative Agent (the "Administrative Agent") for the Lenders (the
"Lenders"), the Issuing Bank (the "Issuing Bank") and the other Agents under the
Credit Agreement (as hereinafter defined) (the Administrative Agent, the
Lenders, the Issuing Bank and the other Agents being collectively referred to
herein as the "Guaranteed Parties").
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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, NationsBank, N.A., as Issuing Bank and 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 8.9 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, the
Issuing Bank 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
<PAGE>
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, the Issuing Bank 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;
<PAGE>
(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,
<PAGE>
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
<PAGE>
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.
<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.
Section 12. Automatic Acceleration in Certain Events. Upon the
occurrence of an Event of Default specified in Section 11.1(e) or 11.1(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 11.1(e) or 11.1(f)
of the Credit Agreement should occur with respect to the Guarantor, then the
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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.
<PAGE>
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>
EXHIBIT I
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (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,
NationsBank, N.A., as Issuing Bank and 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 9.1. and 9.2. thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
<PAGE>
into this Assignment and Assumption Agreement; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the other
Agents, the Issuing Bank, 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 5.21.
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.
<PAGE>
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: $_______
Aggregate outstanding principal amount
of Competitive Bid 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:
- ---------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Assumption Agreement to the
Administrative Agent.
<PAGE>
Accepted [and Approved]**
this ___ day of ___________, ___
NATIONSBANK, N.A., as Administrative Agent
By:
Title:
[Approved** this ____ day
of ____________, ____
SHAW INDUSTRIES, INC.
By:
Title:
- ---------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
<PAGE>
EXHIBIT J
FORM OF COMPLIANCE CERTIFICATE
For the quarter ending _________, _____
NationsBank, N.A., as Administrative Agent
Independence Center
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255-0001
Attention: Margaret Rhodes, 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 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, NationsBank, N.A., as Issuing Bank and
Administrative Agent (the "Administrative Agent") and Suntrust Bank, Atlanta, as
Documentation 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>
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. Minimum Net Worth (ss.10.1(b))
A. $510,000,000
B. Cumulative Positive Consolidated Net Income
since January 3, 1998: $_________________
C. 50% of Item B $_________________
D. Aggregate net proceeds from equity
issuances after January 3, 1998: $_________________
E. Aggregate consideration paid for equity
repurchases, etc. after January 3, 1998: $ 2
F. Sum of Item A plus C plus D minus E: $_________________
G. Consolidated Net Worth $
H. Test - Item G must be
greater than Item F:
____yes ____no
III. Consolidated Funded Debt to EBITDA (ss.10.1(c))
- ---------
1 Section references contained herein are references to the section of
the Credit Agreement requesting the respective financial data.
2 Up to maximum amount of $150,000,000.
<PAGE>
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 _________:1:00
maximum ratio permitted: 4.00 to 1.00
divided by B):
IV. 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: $_________________
maximum allowed: $50,000,000
C. Sold Receivables Indebtedness: $_________________
maximum allowed: $250,000,000
V. Restricted Payments (ss.10.5)
A. Cumulative Positive Consolidated Net Income
since January 3, 1998: $_________________
B. $15,000,000 plus 50% of Item A: $_________________
C. Aggregate amount of dividends, stock redemptions, other payments since
January
3, 1998: $_________________
D. Test - Item C must be less than or equal to Item B: ____yes ____no
VI. 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
<PAGE>
VII. 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
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 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% 0.75%
-------------------------------------- --------------------- ----------------------
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .20% 0.55%
-------------------------------------- --------------------- ----------------------
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.00 to 1.00
but greater than 2.50 to 1.00 .175% 0.45%
-------------------------------------- --------------------- ----------------------
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.50 to 1.00
but greater than 2.00 to 1.00 .15% 0.35%
-------------------------------------- --------------------- ----------------------
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.00 to 1.00 .10% 0.22%
-------------------------------------- --------------------- ----------------------
</TABLE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the day of __________, ____.
By:
Title:
Management's Discussion and Analysis
Financial Condition and Results of Operations
General
The company's business, as well as the U.S. carpet industry in general, is
affected by general economic conditions. The level of domestic carpet sales
tends to reflect fluctuations in consumer spending for durable goods and, to a
lesser extent, fluctuations in interest rates and new housing starts. The
company's international operations are also impacted by the economic climates in
the markets in which they operate (primarily Australia and Mexico). During 1998,
strong U.S. economic conditions and gaining customers through strategic
transactions discussed below increased demand for the company's domestic
wholesale manufacturing business. Domestic wholesale manufacturing sales prices
in 1998 were comparable to 1997 while margins improved on lower raw material
costs. The Australian market improved throughout 1998, and margins increased
slightly in 1998 compared to 1997 on higher sales prices. Fiscal years 1998 and
1996 consisted of 52 weeks while fiscal 1997 consisted of 53 weeks.
In the first quarter of 1998, the company completed the disposal of its
wholly-owned U.K. subsidiary, Carpets International, Plc. A related charge to
reduce the carrying value of certain U.K. assets of $48.0 million ($20.3
million, net of tax benefit) was recorded in December 1997.
In August 1998, the company sold substantially all of its residential retail
operations to The Maxim Group, Inc. ("Maxim") and closed stores not sold. The
company recorded nonrecurring charges for the loss on sale of its residential
retail operations, store closing costs, and the write-down of certain assets of
$132.3 million ($92.7 million, net of tax benefit) resulting from exiting its
residential retail business.
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 $36.0 million of
cash and approximately $216 million of assumed debt. Based on estimates of the
fair values of assets and liabilities acquired, goodwill of $318.6 million has
been recorded and is being amortized over 40 years. In connection with the
disposition of 3.15 million shares of Maxim stock, the company realized a loss
on the sale of equity securities of approximately $22.2 million ($13.4 million,
net of tax benefit) as a result of a decrease in market value of the stock since
its acquisition.
Liquidity and Capital Resources
At January 2, 1999, the company had working capital of $627.6 million, a
decrease of $113.4 million from working capital of $741.0 million at January 3,
1998. Working capital decreased primarily as a result of a receivables
securitization program established September 3, 1998 under which the company
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 is entitled to sell a participation
interest in new receivables to the conduit to bring the amount in the pool up to
the maximum permitted under the program. 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 September 1, 1999, but may be extended for additional one-year terms. As
of January 2, 1999, the company had approximately $198.2 million of accounts
receivable sold and outstanding under this program.
Cash and cash equivalents decreased $31.0 million to $12.6 million at January 2,
1999. The company's operations generated cash flow of $378.0 million in 1998,
principally from net income of $20.6 million adjusted for depreciation and
amortization of $80.6 million, a charge to record the loss on sale of
residential retail operations, store closing costs and write-down of certain
assets of $132.3 million, and a decrease in accounts receivable and other
current assets of $185.6 million primarily related to the previously described
sale of receivables, offset in part by an increase in inventories of $56.4
million. In 1997, cash generated from operating activities was $139.3 million
primarily as a result of net income of $29.0 million adjusted for depreciation
and amortization of $95.0 million, a charge to record store closing costs of
$36.8 million, a write-down of U.K. assets of $48.0 million and decreases in
accounts receivable and inventories of $74.3 million, offset in part by an
increase in current assets of $30.7 million and decreases in accounts payable
and accrued liabilities of $95.7 million.
In 1998, the company's investing activities primarily included additions to
property, plant and equipment, net of retirements, of $67.3 million, the
disposal of Carpets International, Plc (U.K.) and residential retail operations'
assets, net of liabilities, of $.4 million and acquisitions of business assets
of $36.0 million. Investing activities in 1997 consisted primarily of additions
to property, plant and equipment, net of retirements, of $78.0 million and
acquisitions of business assets of $28.7 million. Cash used in financing
activities for 1998 of $306.3 million included the purchase of common stock of
$176.6 million, net payments on long-term borrowings of $155.5 million funded
primarily by the sale of receivables, and the payment of cash dividends of $9.8
million, offset in part by proceeds from the exercise of stock options of $35.5
million. Financing activities for 1997 of $38.6 million included payments on
notes payable of $39.4 million, cash dividends of $40.0 million and repurchases
of common stock of $46.1 million, offset in part by a net increase in long-term
borrowings of $86.4 million.
During 1998, the company implemented EVA [Registration Mark], 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 necessary to maintain the
company's facilities in modern state-of-the-art condition, expand production
capacity and increase efficiency were $76.0 million for 1998. Management
anticipates total capital
EXHIBIT 13 - PAGE 1
<PAGE>
expenditures and capitalized lease obligations of approximately $100 million for
1999 to expand and upgrade its manufacturing and distribution equipment to meet
anticipated increases in sales volume and to improve efficiency.
In March 1998, the company completed a "dutch auction" tender offer under which
the company purchased approximately 10,622,000 shares of its common stock at a
price of $12.50 per share or approximately $133.9 million. The shares purchased
represented approximately 8.1 percent of the shares outstanding at the time of
the tender offer. Funds to purchase the tendered shares were provided primarily
from capacity under the company's new $1.0 billion unsecured revolving credit
facility. The company discontinued cash dividends after paying $9.8 million in
February 1998.
The company's primary source of financing is an unsecured revolving credit
facility with a banking syndicate entered into in March 1998 which replaced the
previous $900 million facility. The facility provides for borrowings of up to
$1.0 billion and expires in March 2003. The interest rate on borrowings under
this facility is currently based on LIBOR and was 5.70 percent, including
applicable margins, at January 2, 1999. Borrowings outstanding under this credit
facility at January 2, 1999 were $844.0 million. To provide further financing
capacity, in October 1998, the company entered into a 364-day $150 million
senior unsecured revolving credit facility which remained unutilized and
available at January 2, 1999. In addition, the company maintains a revolving
credit facility in Australia of $57.5 million with $47.1 million outstanding and
$10.4 million available at January 2, 1999.
The company believes that available borrowings under its existing credit
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.
Market Risk Exposure and Derivative Financial Instruments
The company is exposed to market risk primarily in the form of changes in
interest rates and, to a lesser extent, changes in currency exchange rates and
commodity prices. To manage the volatility relating to these exposures, the
company enters into various derivative financial instruments and purchase
contracts in keeping with company policies governing financial risk management.
The company does not enter into derivative financial instruments for trading
purposes.
Interest rate swap agreements are employed to hedge interest rate increases on
the company's credit facilities. Under current accounting literature, the
interest rate differential on the company's existing swaps is recorded as an
adjustment to interest expense. At January 2, 1999, the company had interest
rate swap agreements with notional amounts totaling $557.8 million under which
the company has agreed to pay interest at a weighted average fixed rate of 6.14
percent including applicable margins. The swap agreements expire at various
dates through March 2003.
The company may employ foreign currency forward exchange contracts to
effectively manage exposure to fluctuations in currency exchange rates in its
Australian and Mexican operations. Foreign currency forward exchange contracts
outstanding at January 2, 1999 were immaterial.
The company's manufacturing costs and operating expenses are affected by price
changes. The costs of fiber and other raw materials decreased approximately 4
percent in 1998, decreased approximately 3 percent in 1997 and increased
slightly in 1996. The company has historically mitigated inflationary effects by
passing price changes along to its customers and by continually developing and
implementing more cost effective manufacturing and other operational processes.
The company's ongoing ability to mitigate the effect of price changes will
depend on market factors.
Based on the company's overall interest rate, currency exchange and commodity
price exposures, near-term changes in each of these exposures would have
immaterial effects on the company's consolidated results of operations, cash
flow, financial position and derivative and underlying instrument fair value.
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 2000.
The company has not yet quantified the impacts of adopting SFAS No. 133 on its
financial statements and has not determined the method of adoption of SFAS No.
133. However, the Statement could increase volatility in earnings and other
comprehensive income.
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, consisting primarily of upgrades, replacements, specific
enhancements, and other corrective measures, are proceeding on schedule. The
majority of the efforts were completed in fiscal 1998 with compliance testing to
follow in 1999.
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
EXHIBIT 13 - PAGE 2
<PAGE>
Discussion and Analysis of Financial Condition and Results of Operations
(continued)
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 $2.0
million to perform compliance remediation and expects to incur less than $3.0
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 is focusing 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.
Results of Operations
The company's primary 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., 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
segments and allocates resources to them on the basis of sales, gross margin and
"net divisional contribution" which consists of gross margin less selling
expense.
The following table summarizes key management information for the company's
reportable segments (000s omitted):
Wholesale Residential
Manufacturing Retail Intercompany Consolidated
Operations Operations Eliminations Operations
Net Sales
1998 $3,419,538 $341,769 $(219,105) $3,542,202
1997 3,170,158 638,662 (233,046) 3,575,774
1996 2,913,467 351,790 (63,703) 3,201,554
Gross Margin
1998 772,097 128,273 (621) 899,749
1997 655,290 243,385 (3,373) 895,302
1996 575,535 140,951 -- 716,486
Selling Expense
1998 321,208 135,720 -- 456,928
1997 280,174 263,902 (1,014) 543,062
1996 272,855 121,297 -- 394,152
1998 Compared to 1997
Wholesale manufacturing sales increased $249.4 million during 1998 as a result
of improved general demand as well as the acquisition of Queen described above,
which added sales of $207.3 million, offset in part by decreased sales as a
result of the previously discussed disposal of the U.K. operations. Wholesale
manufacturing margins on outside sales improved from 22.2 percent in 1997 to
24.1 percent in 1998 primarily due to lower raw material costs and improved
product mix. Wholesale manufacturing operations selling expense increased to 9.4
percent in 1998 from 8.8 percent in 1997 due to increased advertising after the
company's exit from the residential retail business.
As indicated above, substantially all residential retail operations were sold or
closed during 1998 and late 1997 resulting in reduced sales, gross margin and
selling expense in 1998 compared to 1997.
As a result of the above, consolidated net sales decreased $33.6 million, or .9
percent, to $3,542.2 million in 1998. Consolidated gross margin as a percentage
of net sales increased .4 percent to 25.4 percent in 1998 compared to 1997, due
to lower raw material costs in wholesale manufacturing operations, offset by the
reduction in higher margin residential retail sales.
EXHIBIT 13 - PAGE 3
<PAGE>
Selling, general and administrative expenses for 1998 were $620.9 million, or
17.5 percent of net sales, compared to $722.6 million, or 20.2 percent of net
sales, in 1997. The decrease of $101.7 million, or 2.7 percent of net sales, was
principally due to the company's exiting the residential retail business.
Interest expense increased $1.8 million to $62.6 million in 1998 due to higher
average borrowings resulting from funding stock repurchases and the acquisition
of Queen.
Results for 1998 included nonrecurring charges of $132.3 million ($92.7 million,
net of tax benefit, or $.71 per share) and a loss on the sale of equity
securities of $22.2 million ($13.4 million, net of tax benefit, or $.10 per
share) both as discussed in Note 8 of Notes to Consolidated Financial
Statements. Net income before nonrecurring charges was $126.7 million, or $.97
per share. After nonrecurring charges, net income was $20.6 million, or $.16 per
share on basic and diluted bases. Net income before nonrecurring charges for
1997 was $72.3 million, or $.54 per share, including a gain on the sale of fixed
assets of $3.4 million, net of tax, or $.03 per share. Results for 1997 included
a charge to record residential retail store closing costs of $36.8 million
($23.0 million, net of tax benefit, or $.17 per share) and a reduction in the
carrying value of the assets of Carpets International, Plc (U.K.) of $48.0
million ($20.3 million, net of tax benefit, or $.15 per share). Net income for
1997 was $29.0 million, or $.22 per share on basic and diluted bases.
The effective income tax rate for 1998 before the nonrecurring charges decreased
to 41.1 percent compared to 41.7 percent for 1997 due to more profitable foreign
operations in 1998 which are taxed at a lower effective income tax rate.
1997 Compared to 1996
Wholesale manufacturing sales increased $256.7 million during 1997 on improved
economic conditions and internally generated sales to the company's residential
retail operations. Wholesale manufacturing margins on outside sales increased
from 20.2 percent in 1996 to 22.2 percent in 1997 on lower raw material costs
and improved efficiencies generated by higher production volume. Changes in
residential retail sales, margins and selling expenses reflect the continued
development of the residential retail operations during 1997.
As a result of the above, consolidated net sales increased $374.2 million, or
11.7 percent, to $3,575.8 million in 1997. The increase was primarily
attributable to incremental net sales related to residential retail and
wholesale manufacturing business acquisitions. Consolidated gross margin as a
percent of net sales increased 2.6 percent to 25.0 percent for 1997, compared to
22.4 percent for 1996, primarily due to the incremental impact of residential
retail margins.
Selling, general and administrative expenses for 1997 were $722.6 million, or
20.2 percent of net sales, compared to $541.3 million, or 16.9 percent of net
sales, in 1996. The increase of $181.3 million, or 3.3 percent of net sales, was
primarily due to increased advertising and other selling and administrative
expenses associated with the company's expansion into the residential retail
business. Pre-opening expenses related to the retail operations totaled $4.0
million in 1997 compared to $13.6 million in 1996. Interest expense, net,
increased to $60.8 million in 1997 from $42.4 million in 1996 as a result of
higher borrowings and an overall increase in interest rates.
Results for 1997 include a charge to record residential retail store closing
costs of $36.8 million ($23.0 million, net of tax benefit, or $.17 per share)
and a reduction in the carrying value of the assets of Carpets International,
Plc (U.K.) of $48.0 million ($20.3 million, net of tax benefit, or $.15 per
share). Net income before these charges was $72.3 million, or $.54 per share,
including a gain on the sale of fixed assets of $3.4 million, net of tax, or
$.03 per share, compared to 1996 net income of $84.7 million, or $.62 per share,
before nonrecurring charges of $65.2 million ($50.7 million, net of tax benefit,
or $.37 per share), of which $16.1 million was charged to cost of sales. Net
income after the charge to record store closing costs and reduct ion in the
carrying value of the assets in the U.K. was $29.0 million, or $.22 per share,
in 1997 compared to net income of $34.0 million, or $.25 per share, after
nonrecurring charges in 1996.
The effective income tax rate for 1997 was 18.4 percent, compared to 59.0
percent in 1996, as a result of lower taxable income created by the tax benefit
related to the reduction in the carrying value of the U.K. assets.
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 form 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.}
EXHIBIT 13 - PAGE 4
<PAGE>
<TABLE>
<CAPTION>
Consolidated Balance Sheets
January 2, 1999 and January 3, 1998
<S> <C> <C>
1998 1997
--------------- ---------------
Assets
Current Assets:
Cash and cash equivalents ............................... $ 12,555,000 $ 43,571,000
--------------- ---------------
Accounts receivable, less allowance for doubtful accounts
and discounts of $21,512,000 in 1998 and $16,283,000 in 1997 276,002,000 374,516,000
--------------- ---------------
Inventories-
Raw materials ......................................... 293,868,000 235,820,000
Work-in-process ....................................... 75,060,000 23,584,000
Finished goods ........................................ 290,152,000 270,655,000
--------------- ---------------
659,080,000 530,059,000
--------------- ---------------
Other current assets .................................... 134,733,000 118,267,000
--------------- ---------------
Total current assets .................................. 1,082,370,000 1,066,413,000
--------------- ---------------
Property, Plant and Equipment, at cost:
Land and land improvements .............................. 31,425,000 27,827,000
Buildings and leasehold improvements .................... 320,991,000 299,090,000
Machinery and equipment ................................. 1,105,505,000 987,561,000
Construction in progress ................................ 41,827,000 69,345,000
--------------- ---------------
1,499,748,000 1,383,823,000
Less-Accumulated depreciation and amortization .......... 783,320,000 759,444,000
--------------- ---------------
716,428,000 624,379,000
--------------- ---------------
Goodwill, net of amortization ............................... 416,028,000 236,209,000
--------------- ---------------
Investment in Joint Venture ................................. 22,245,000 21,269,000
--------------- ---------------
Other Assets ................................................ 24,376,000 19,344,000
--------------- ---------------
Total Assets .......................................... $2,261,447,000 $1,967,614,000
=============== ===============
EXHIBIT 13 - PAGE 5
<PAGE>
1998 1997
--------------- ---------------
Liabilities and Shareholders' Investment
Current Liabilities:
Notes payable ........................................... $ -- $ 10,000
Current maturities of long-term debt .................... 8,000 2,752,000
Accounts payable ........................................ 194,352,000 161,964,000
Accrued liabilities ..................................... 260,450,000 160,728,000
--------------- ---------------
Total current liabilities ............................. 454,810,000 325,454,000
--------------- ---------------
Long-Term Debt, less current maturities ..................... 927,434,000 930,424,000
--------------- ---------------
Deferred Income Taxes ....................................... 65,768,000 61,689,000
--------------- ---------------
Other Liabilities ........................................... 16,067,000 12,513,000
--------------- ---------------
Commitments and Contingencies
Shareholders' Investment:
Preferred stock, 250,000 shares authorized, no shares issued -- --
Common stock, no par, $1.11 stated value, authorized
500,000,000 shares; issued and outstanding: 140,906,175 shares
at January 2, 1999 and 131,118,065 shares at January 3, 1998 156,407,000 145,542,000
Paid-in capital ......................................... 195,452,000 54,745,000
Cumulative translation adjustment ....................... (3,156,000) (620,000)
Retained earnings ....................................... 448,665,000 437,867,000
--------------- ---------------
Total shareholders' investment ........................ 797,368,000 637,534,000
--------------- ---------------
Total Liabilities and Shareholders' Investment ........ $2,261,447,000 $1,967,614,000
=============== ===============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
EXHIBIT 13 - PAGE 6
<PAGE>
<TABLE>
<CAPTION>
Consolidated Statements of Income
For Years Ended January 2, 1999, January 3, 1998 and December 28, 1996
<S> <C> <C> <C>
1998 1997 1996
--------------- --------------- ---------------
Net Sales ............................................. $3,542,202,000 $3,575,774,000 $3,201,554,000
Costs and Expenses:
Cost of sales ..................................... 2,642,453,000 2,680,472,000 2,485,068,000
Selling, general and administrative ............... 620,878,000 722,590,000 541,338,000
Charge to record loss on sale of residential retail
operations, store closing costs and write-down
of certain assets ............................... 132,303,000 -- --
Pre-opening expenses .............................. -- 3,953,000 13,595,000
Charge to record store closing costs .............. -- 36,787,000 --
Write-down of U.K. assets ......................... -- 47,952,000 --
Nonrecurring charges .............................. -- -- 49,102,000
Interest, net ..................................... 62,553,000 60,769,000 42,442,000
Loss on sale of equity securities ................. 22,247,000 -- --
Other expense (income), net ....................... 4,676,000 (7,032,000) (3,609,000)
--------------- --------------- ---------------
Income Before Income Taxes ............................ 57,092,000 30,283,000 73,618,000
Provision for Income Taxes ............................ 38,407,000 5,586,000 43,463,000
--------------- --------------- ---------------
Income Before Equity in Income of Joint Venture ....... 18,685,000 24,697,000 30,155,000
Equity in Income of Joint Venture ..................... 1,947,000 4,262,000 3,868,000
--------------- --------------- ---------------
Net Income ............................................ $ 20,632,000 $ 28,959,000 $ 34,023,000
=============== =============== ===============
Earnings Per Common Share (Basic and Diluted) ......... $ 0.16 $ 0.22 $ 0.25
=============== =============== ===============
Weighted Average Shares Outstanding:
Basic ............................................. 128,031,290 133,523,380 135,731,360
Diluted ........................................... 129,915,178 133,714,496 135,915,308
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
EXHIBIT 13 - PAGE 7
<PAGE>
<TABLE>
<CAPTION>
Consolidated Statements of Shareholders' Investment
For Years Ended January 2, 1999, January 3, 1998 and December 28, 1996
<S> <C> <C> <C> <C> <C>
Accumulated
Other
Comprehensive
Income --
Cumulative
Common Stock Paid-In Translation Retained
Shares Amount Capital Adjustment Earnings
------------- -------------- -------------- ------------ --------------
Balance, December 30, 1995 ..................... 135,956,602 $ 150,913,000 $ 101,718,000 $ 1,895,000 $ 455,663,000
Comprehensive Income:
Net income ............................... -- -- -- -- 34,023,000
Cumulative translation
adjustment ................................... -- -- -- 1,163,000 --
Issuance of stock in
acquisitions ................................. 4,379,646 4,862,000 49,207,000 -- --
Purchase and retirement
of common stock .............................. (7,676,800) (8,521,000) (79,275,000) -- --
Exercise of stock options ................ 113,100 125,000 685,000 -- --
Cash dividends paid
($.30 per share) ......................... -- -- -- -- (40,747,000)
------------- -------------- -------------- ------------ --------------
Balance, December 28, 1996 ..................... 132,772,548 147,379,000 72,335,000 3,058,000 448,939,000
Comprehensive Income:
Net income ............................... -- -- -- -- 28,959,000
Cumulative translation
adjustment ................................... -- -- -- (3,678,000) --
Issuance of stock in
acquisitions ................................. 2,112,517 2,344,000 23,336,000 -- --
Issuance of stock to
directors .................................... 7,000 8,000 83,000 -- --
Purchase and retirement
of common stock .............................. (3,820,000) (4,240,000) (41,822,000) -- --
Exercise of stock options ................ 46,000 51,000 504,000 -- --
Tax benefit on disposition
of stock options ............................. -- -- 309,000 -- --
Cash dividends paid
($.30 per share) ......................... -- -- -- -- (40,031,000)
------------- -------------- -------------- ------------ --------------
Balance, January 3, 1998 ....................... 131,118,065 145,542,000 54,745,000 (620,000) 437,867,000
Comprehensive Income:
Net income ............................... -- -- -- -- 20,632,000
Cumulative translation
adjustment ................................... -- -- -- (2,536,000) --
Issuance of stock in
acquisitions ................................. 20,343,246 22,581,000 269,950,000 -- --
Issuance of stock to
directors .................................... 5,800 6,000 86,000 -- --
Purchase of common stock ................. (13,102,661) (14,544,000) (162,032,000) -- --
Exercise of stock options ................ 2,541,725 2,822,000 29,260,000 -- --
Tax benefit on disposition
of stock options ......................... -- -- 3,443,000 -- --
Cash dividends paid
($.075 per share) ........................ -- -- -- -- (9,834,000)
------------- -------------- -------------- ------------ --------------
Balance, January 2, 1999 ........................ 140,906,175 $ 156,407,000 $ 195,452,000 $(3,156,000) $ 448,665,000
============= ============== ============== ============ ==============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
EXHIBIT 13 - PAGE 8
<PAGE>
<TABLE>
<CAPTION>
Consolidated Statements of Cash Flow
For Years Ended January 2, 1999, January 3, 1998 and December 28, 1996
<S> <C> <C> <C>
1998 1997 1996
---------------- -------------- --------------
Operating Activities:
Net Income ................................................ $ 20,632,000 $ 28,959,000 $ 34,023,000
---------------- -------------- --------------
Adjustments to Reconcile Net Income to
Net Cash Provided by Operating Activities:
Depreciation and amortization ........................... 80,598,000 94,954,000 90,906,000
Provision for doubtful accounts ......................... 5,817,000 9,318,000 10,777,000
Deferred income taxes ................................... (4,190,000) (1,841,000) 12,120,000
Charge to record loss on sale of residential
retail operations, store closing costs and
write-down of certain assets .......................... 132,303,000 -- --
Charge to record store closing costs .................... -- 36,787,000 --
Write-down of U.K. assets ............................... -- 47,952,000 --
Nonrecurring charges .................................... -- -- 49,102,000
Changes in operating assets and liabilities,
net of acquisitions and dispositions:
Accounts receivable ................................. 154,911,000 35,166,000 1,937,000
Inventories ......................................... (56,444,000) 39,111,000 2,250,000
Other current assets ................................ 30,720,000 (30,740,000) (35,754,000)
Accounts payable .................................... (1,349,000) (60,360,000) 22,427,000
Accrued liabilities ................................. 8,810,000 (35,371,000) (16,703,000)
Other, net .......................................... 6,223,000 (24,657,000) (4,806,000)
---------------- -------------- --------------
Total Adjustments ................................. 357,399,000 110,319,000 132,256,000
---------------- -------------- --------------
Net Cash Provided by Operating Activities ........... 378,031,000 139,278,000 166,279,000
---------------- -------------- --------------
Investing Activities:
Additions to property, plant and equipment ................ (76,033,000) (109,883,000) (109,454,000)
Retirements of property, plant and equipment, net ......... 8,745,000 31,882,000 2,606,000
Acquisitions of business assets ........................... (35,981,000) (28,727,000) (70,214,000)
Disposal of U.K. assets ................................... (16,566,000) -- --
Sale of residential retail operations ..................... 16,212,000 -- --
Other ..................................................... 917,000 -- --
---------------- -------------- --------------
Net Cash Used in Investing Activities ............... (102,706,000) (106,728,000) (177,062,000)
---------------- -------------- --------------
Financing Activities:
Borrowings under revolving credit agreements .............. 1,066,930,000 330,000,000 155,000,000
Repayment of revolving credit agreements .................. (1,225,835,000) (220,702,000) (75,000,000)
Borrowings on other long-term debt ........................ 3,449,000 -- 76,644,000
Repayment of long-term debt ............................... -- (22,937,000) --
Net payments on short-term debt ........................... -- (39,383,000) --
Purchase and retirement of common stock ................... (176,576,000) (46,062,000) (87,796,000)
Payment of cash dividends ................................. (9,834,000) (40,031,000) (40,747,000)
Proceeds from exercise of stock options ................... 35,525,000 555,000 810,000
---------------- -------------- --------------
Net Cash (Used in) Provided by
Financing Activities ................................ (306,341,000) (38,560,000) 28,911,000
---------------- -------------- --------------
Cash and Cash Equivalents:
Net change ................................................ (31,016,000) (6,010,000) 18,128,000
Beginning of period ....................................... 43,571,000 49,581,000 31,453,000
---------------- -------------- --------------
End of period ............................................. $ 12,555,000 $ 43,571,000 $ 49,581,000
================ ============== ==============
Supplemental Disclosures of Cash Flow Information:
Cash paid (received) during the year for-
Interest ................................................ $ 64,750,000 $ 66,223,000 $ 39,997,000
Income taxes ............................................ $ (42,046,000) $ 51,619,000 $ 63,696,000
Noncash capital lease obligations ......................... $ -- $ -- $ 1,540,000
Acquisition of business assets by assuming liabilities .... $ 344,111,000 $ 40,328,000 $ 121,670,000
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
EXHIBIT 13 - PAGE 9
<PAGE>
Notes to Consolidated Financial Statements
January 2, 1999, January 3, 1998 and December 28, 1996
Note 1 Summary of Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of Shaw Industries,
Inc. and subsidiaries (the "company"). All significant intercompany balances and
transactions are eliminated in consolidation.
Nature of Business
The company manufactures and distributes carpet in a broad range of prices,
patterns, colors and textures for residential and commercial use. The company
markets its products primarily through wholesale distribution channels to floor
covering retailers, distributors and contractors throughout the United States,
Canada, Australia and Mexico and through commercial contract distribution
channels to various residential and commercial retailers in the United States.
The company also provides installation and project management services through
its commercial contract distribution channels and offers laminate flooring and
ceramic tile products.
Fiscal Period
The company's fiscal year-end is the Saturday closest to December 31. Fiscal
1998 consisted of 52 weeks, fiscal 1997 consisted of 53 weeks and fiscal 1996
consisted of 52 weeks.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Revenue Recognition
Revenues are recognized when goods are shipped for wholesale sales and generally
as installed for residential retail and commercial contract sales.
Cash and Cash Equivalents
The company considers all investments with an original maturity of three months
or less to be cash equivalents.
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 costs of
issuing its own commercial paper backed by these accounts receivable and
accounts receivable sold by other participating entities. The agreement expires
September 1, 1999, 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, which proceeds were used to reduce outstanding
borrowings under its domestic revolving credit facility and were reflected as a
reduction of receivables in the consolidated balance sheet and as an operating
activity in the consolidated statement of cash flow. As of January 2, 1999, the
company had approximately $198,169,000 of accounts receivable sold and
outstanding under this program.
Inventories
Inventories are stated at the lower of cost or market. Cost includes materials,
direct and indirect labor and factory overhead. Market with respect to raw
materials is replacement cost and for work-in-process and finished goods is net
realizable value. The company uses the last-in, first-out (LIFO) method of
valuing certain of its domestic inventories to more properly match current costs
against current revenues, thereby reducing the effects of price changes on
earnings. If LIFO inventories were valued at current costs, the inventory
amounts would have been $23,556,000 and $11,707,000 lower than those reported at
January 2, 1999 and January 3, 1998, respectively. Although current replacement
cost for inventories was less than LIFO carrying value at January 2, 1999, the
company's management believes that the carrying value will be recovered through
profit margins on future sales. The company's foreign and certain of its
finished goods inventories, representing approximately 10 percent and 28 percent
of total inventories, are valued at the lower of first-in, first-out (FIFO) cost
or market at January 2, 1999 and January 3, 1998, respectively.
Property, Plant and Equipment
Property, plant and equipment is recorded at cost or estimated fair value at
date of acquisition. Renewals and betterments are capitalized; maintenance and
repairs are charged to expense as incurred. The cost and accumulated
depreciation of property retired or otherwise disposed of are removed from the
accounts, and any gains or losses thereon are included in income. For financial
reporting purposes, depreciation is computed using the straight-line method over
the estimated useful lives of the assets, 15 to 39 years for buildings and 5 to
14 years for machinery and equipment. Leasehold improvements are amortized over
the terms of the related leases.
EXHIBIT 13 - PAGE 10
<PAGE>
Notes to Consolidated Financial Statements (continued)
January 2, 1999, January 3, 1998 and December 28, 1996
Goodwill
Costs in excess of the fair value of net assets of businesses acquired are
recorded as goodwill and are amortized using the straight-line method over a
period not to exceed 40 years for acquisitions of domestic and foreign
manufacturing operations and 20 years for acquisitions of commercial operations.
The recoverability of goodwill is periodically reviewed by management based on
current and anticipated conditions. The amount of goodwill considered realizable
could be reduced in the near term if changes occur in anticipated conditions.
Accumulated amortization was $23,271,000, $17,858,000 and $11,485,000 at January
2, 1999, January 3, 1998 and December 28, 1996, respectively.
Accrued Liabilities
Accrued liabilities include $32,877,000 and $33,597,000 for workers'
compensation claims and $31,652,000 and $25,446,000 for returns and allowances
at January 2, 1999 and January 3, 1998, respectively.
Employee Benefits
The company's Retirement Savings Plan provides, among other things, for
voluntary contributions by domestic employees not to exceed 15 percent of their
gross salaries and wages. The company provides matching contributions of 25 to
50 percent based on the employee's contribution percentage. At January 2, 1999,
$14,359,000, or 4.3 percent, of the Plan's assets consisted of shares of the
company's common stock as elected by plan participants. During 1998, 1997 and
1996, the company contributed $12,359,000, $11,987,000 and $9,960,000,
respectively, under the plan.
The company has a Deferred Compensation Plan for key personnel. The plan
provides, among other things, for certain deferred compensation to become
payable on the employee's death, retirement or total disability as set forth in
the plan. During 1998, 1997 and 1996, the company provided $1,743,000,
$1,546,000, and $2,008,000, respectively, under the plan. The actuarial present
value of obligations of the plan have been recorded as other liabilities in the
accompanying consolidated balance sheets.
Earnings Per Share
The company adopted Statement of Financial Accounting Standards (SFAS) No. 128,
EARNINGS PER SHARE, effective January 3, 1998. Earnings per share have been
computed based upon the weighted average shares and dilutive potential common
shares outstanding during the year. All prior period earnings per share amounts
have been restated to comply with SFAS No. 128.
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
forward exchange contracts when they are determined to effectively manage and
reduce foreign currency exchange rate fluctuation risk. The company does not
enter into financial derivatives for 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 2000. The company's management has not determined the impact this
statement will have on the financial statements.
Segment and Enterprise-Wide Information
Effective in 1998, the company adopted SFAS No. 131, DISCLOSURES ABOUT SEGMENTS
OF AN ENTERPRISE AND RELATED INFORMATION. SFAS No. 131 supersedes SFAS No. 14,
FINANCIAL REPORTING FOR SEGMENTS OF A BUSINESS ENTERPRISE, replacing the
"industry segment" approach with the "management" approach. The management
approach designates the internal organization that is used by management for
making operating decisions and assessing performance as the source of the
company's reportable segments. SFAS No. 131 also requires disclosures about
products and services, geographic areas, and major customers. The adoption of
SFAS No. 131 did not affect results of operations or financial position but did
affect the disclosure of segment information (see Note 9).
Comprehensive Income
Effective January 4, 1998, the company adopted SFAS No. 130, REPORTING
COMPREHENSIVE INCOME, which requires additional disclosure of amounts comprising
comprehensive income. The company has other comprehensive income in the form of
cumulative translation adjustments which resulted in total comprehensive income
of $18,096,000, $25,281,000 and $35,186,000 for 1998, 1997 and 1996,
respectively.
EXHIBIT 13 - PAGE 11
<PAGE>
Note 2 Long-Term Debt
Long-term debt presented in the accompanying consolidated balance sheets at
January 2, 1999 and January 3, 1998 consisted of the following (000s omitted):
<TABLE>
<CAPTION>
<S> <C> <C>
1998 1997
---------- ----------
Revolving credit facility, United States, at LIBOR-based rate, due in fiscal 2003 $ 844,000 $ 774,000
Revolving loan facility, Australia, at LIBOR-based rate, due in fiscal 2000 ..... 47,057 46,207
Revolving multi-currency credit facility, United Kingdom, at LIBOR-based rate ... -- 80,033
Term loans and other ............................................................ 35,277 25,281
Capitalized leases .............................................................. 1,108 7,655
---------- ----------
927,442 933,176
Less: current maturities ....................................................... (8) (2,752)
---------- ----------
$ 927,434 $ 930,424
========== ==========
</TABLE>
In March 1998, the company replaced the $900 million domestic revolving credit
facility with a facility which provides for borrowings of up to $1.0 billion.
Borrowings bear interest at variable rates equal to the London Interbank Offered
Rate (LIBOR) plus margins ranging from 0.22 percent to 0.75 percent, depending
on the company's consolidated funded debt to earnings ratio, as defined. The
LIBOR-based rate at January 2, 1999 was 5.70 percent. Fees associated with the
domestic revolving credit agreement include a facility fee on the committed
amount ranging from 0.10 percent to 0.25 percent. The LIBOR-based variable
interest rates on a total of $557,813,000 of amounts outstanding under the
company's revolving credit facilities have been fixed through various dates
through March 2003 at a weighted average rate of 6.14 percent using interest
rate swap agreements. The counterparty to certain of these interest rate swap
agreements has the right but not the obligation to terminate the related
agreements on various dates beginning February 2000. To provide further
financing capacity, in October 1998, the company entered into a 364-day $150
million senior unsecured revolving credit facility.
The domestic revolving credit facilities contain covenants which, among other
provisions, (i) limit the company's ability to incur indebtedness or assume
liens, (ii) limit the amount of restricted payments, as defined, (iii) limit new
indebtedness and lease obligations, and (iv) require the company to satisfy
certain ratios related to net worth, debt-to-cash flow and interest coverage.
The foreign revolving loan facilities have covenants that are no more
restrictive than those of the domestic revolving credit agreement. At January 2,
1999, the company was in compliance with the terms of these agreements.
The aggregate annual maturities of long-term debt, including capitalized lease
obligations, as of January 2, 1999 are as follows: 1999 - $8,000; 2000 -
$52,791,000; 2001 - $5,970,000; 2002 - $5,722,000; 2003 - $849,724,000;
thereafter - $13,227,000. The company has guaranteed the $27,600,000 outstanding
under the revolving credit facility held by its Mexican joint venture, which
facility expires February 2001.
The following is presented with respect to the company's revolving credit
facilities for 1998 and 1997 (000s omitted):
Revolving Credit: 1998 1997
----------- -----------
Available at year-end .................. $1,207,465 $1,132,850
Unused at year-end ..................... 311,028 232,610
----------- -----------
EXHIBIT 13 - PAGE 12
<PAGE>
Notes to Consolidated Financial Statements (continued)
January 2, 1999, January 3, 1998 and December 28, 1996
Note 3 Shareholders' Investment
Under the company's 1987 and 1992 Incentive Stock Option Plans, 8 million and 6
million shares of common stock, respectively, are reserved for issuance at a
price not less than the market value on the date granted. These options are
exercisable over five to ten years. Options granted under the 1987 and 1992
Incentive Stock Option Plans are qualified incentive stock options under the
regulations of the Federal internal revenue code ("IRC"). Under the company's
1997 Stock Incentive Plan, 5 million shares of common stock are reserved for
issuance at a price not less than market value on the date granted. Options
granted under the 1997 Stock Incentive Plan are exercisable over 3 to 10 years
or over such accelerated periods as the Board of Directors shall determine. The
1997 Stock Incentive Plan provides for the granting of qualified incentive stock
options and non-qualified stock options under IRC regulations. The 1997 Stock
Incentive Plan also provides for stock appreciation rights and other
stock-related incentives, although none have been granted as of January 2, 1999.
The following is a summary of stock option information for the 1987, 1992 and
1997 Stock Option Plans:
<TABLE>
<CAPTION>
<S> <C> <C>
1998 1997
----------------- -----------------
Options outstanding, beginning of year ......... 8,053,500 5,465,200
Options granted ................................ 2,816,859 2,930,300
Options exercised .............................. (2,541,725) (46,000)
Options canceled ............................... (527,050) (296,000)
Options outstanding, end of year ............... 7,801,584 8,053,500
Option price range per share ................... $10.625 - $17.02 $10.625 - $17.02
Options exercisable, end of year ............... 3,245,615 4,543,900
Options available for grant .................... 3,218,891 5,508,700
----------------- -----------------
</TABLE>
The company accounts for its stock-based compensation plans in accordance with
Accounting Principles Board Opinion No. 25, ACCOUNTING FOR STOCK ISSUED TO
EMPLOYEES, under which no compensation was recognized in 1998, 1997, and 1996
for its stock option plans. The company applies SFAS No. 123, ACCOUNTING FOR
STOCK-BASED COMPENSATION, as required for disclosure purposes. For SFAS No. 123
purposes, the fair value of each stock option grant for 1998, 1997 and 1996 has
been estimated as of the date of the grant using the Black-Scholes option
pricing model with the following weighted average assumptions for 1998, 1997 and
1996, respectively: risk-free interest rates of 5.61 percent, 6.04 percent and
6.64 percent; dividend yields of 0.60 percent, 2.70 percent and 2.29 percent;
expected volatilities of 35 percent, 34 percent and 35 percent; and expected
life of 5 years for all years. Using these assumptions, the fair value of the
stock option grants for 1998, 1997 and 1996 was $15.0 million, or $5.36 per
option granted; $9.3 million, or $3.63 per option granted; and $8.9 million, or
$4.82 per option granted, respectively. Had compensation cost been determined
under SFAS No. 123 utilizing the assumptions detailed above, the company's net
income and net income per common share would have been reduced to the following
pro forma amounts:
1998 1997 1996
----------- ------------ -----------
Net income (in thousands):
As reported ................... $ 20,632 $ 28,959 $ 34,023
Pro forma ..................... 14,769 23,382 30,080
Net income per common share:
As reported ................... $ .16 $ .22 $ .25
Pro forma ..................... .12 .18 .22
----------- ------------ -----------
During March 1989, the company adopted a Shareholder Rights Plan and pursuant
thereto declared a dividend of one Right for each outstanding share of common
stock. When exercisable, each Right will entitle its holder to buy one
one-hundredth of a share of Series A Participating Preferred Stock at a price of
$12.50 per share (the "Purchase Price"). If a person or group acquires or makes
a tender or exchange offer to acquire 20 percent or more of the company's common
stock without the consent of the company (an "Acquiring Shareholder"), the
Rights will become exercisable and each Right will entitle the holder, other
than the Acquiring Shareholder, to receive, upon payment of the Purchase Price,
in lieu of preferred stock, a number of shares of common stock of the company
having a market value equal to twice the Purchase Price. The Rights may be
redeemed by the company under certain circumstances at a price of $.01 per
Right. The Rights have no voting power and, until exercised, no dilutive effect
on net income per common share. If not previously redeemed, the Rights will
expire in April 1999. The company has designated 200,000 shares, of the 250,000
shares of preferred stock authorized, as Series A Participating Preferred Stock
for issuance upon exercise of the Rights.
The company's board of directors approved a stock repurchase plan in 1996
whereby the company's management is authorized to repurchase shares of the
company's common stock. During the year ended January 2, 1999, a total of
approximately 13,103,000
EXHIBIT 13 - PAGE 13
<PAGE>
shares of the company's common stock were purchased at a cost of $176,576,000.
Purchases in 1998 include approximately 10,622,000 shares purchased at a price
of $12.50 per share from tendering shareholders in March 1998 under a "dutch
auction" tender offer. During the year ended January 3, 1998, approximately
3,820,000 shares were purchased and retired at a cost of $46,062,000. In
September 1998, the Board of Directors approved an additional 15,000,000 shares
to be repurchased. At January 2, 1999, the company has authority to purchase up
to 13,813,000 shares of the company's common stock under the stock repurchase
plan.
In February 1998, the company paid a quarterly dividend and announced the
discontinuation of cash dividends for the remainder of 1998. No dividends are
expected to be declared in 1999.
Note 4 Income Taxes
The provision for income taxes consisted of the following (000s omitted):
1998 1997 1996
--------- ---------- ---------
Current:
Federal ............................. $ 36,345 $ (8,568) $ 51,429
State ............................... 3,709 (1,918) 7,824
--------- ---------- ---------
40,054 (10,486) 59,253
Foreign operating loss carryforwards .... (53) 17,860 (8,268)
Deferred ................................ (1,594) (1,788) (7,522)
--------- ---------- ---------
$ 38,407 $ 5,586 $ 43,463
========= ========== =========
<TABLE>
<CAPTION>
The differences between the Federal statutory income tax rate and the Company's
effective income tax rate were as follows:
<S> <C> <C> <C>
1998 1997 1996
------- ------- -------
Federal statutory rate .................................... 35.0% 35.0% 35.0%
State income taxes, net of federal tax benefit ............ 4.6 4.9 4.6
Abandonment of stock of U.K. subsidiary ................... -- (28.1) --
Nondeductible goodwill .................................... 25.9 7.2 13.2
Difference in foreign tax rates versus U.S. statutory rates 1.5 1.0 5.2
Other, net ................................................ .3 (1.6) 1.0
------- ------- -------
67.3% 18.4% 59.0%
======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
Components of the net deferred income tax liability at January 2, 1999 and
January 3, 1998 are shown below (000s omitted):
<S> <C> <C>
1998 1997
--------- ---------
Deferred income tax assets:
Accrued advertising expenses not currently deductible .... $ 1,710 $ 2,705
Reserve for cash discounts and bad debts ................. 9,602 5,793
Employee benefit accruals not currently deductible ....... 25,447 21,455
Reserve for returns and allowances ....................... 12,150 9,976
Foreign net operating loss carryforwards ................. 1,751 4,938
Reorganization provision ................................. 8,193 7,180
Other .................................................... 2,736 2,885
--------- ---------
61,589 54,932
--------- ---------
Deferred income tax liabilities:
Book basis of inventory over tax basis ................... (12,382) (13,896)
Sample costs ............................................. (341) (1,884)
Book basis of property, plant and equipment over tax basis (72,086) (58,619)
Other .................................................... -- (2,214)
--------- ---------
(84,809) (76,613)
--------- ---------
$(23,220) $(21,681)
========= =========
</TABLE>
EXHIBIT 13 - PAGE 14
<PAGE>
Notes to Consolidated Financial Statements (continued)
January 2, 1999, January 3, 1998 and December 28, 1996
As a result of recording the loss on sale of equity securities related to the
sale of The Maxim Group, Inc. common stock (Note 8), the company generated a
capital loss which was recorded as an income tax benefit of $8,877,000. The
realization of the capital loss is dependent upon the company's ability to
generate sufficient taxable capital gains prior to the expiration of the capital
loss carryforward in 2003. Income tax carryforwards of $17,860,000 were reversed
at January 3, 1998 related to the abandonment of the stock of Carpets
International, Plc in the United Kingdom and income tax carryforwards of
$3,185,000 and $1,693,000 were utilized in 1998 and 1997, respectively. Although
realization is not assured, management believes it is more likely than not that
all of the remaining deferred tax asset is realizable; however, it could be
reduced in the near term if estimates of future taxable income decrease.
Note 5 Commitments and Contingencies
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 is continuing. The company
is also a party to two consolidated lawsuits pending in the Superior Court of
the State of California, City and County of San Francisco, both 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.
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 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.
The company has entered into several capitalized leases for machinery and
equipment, including computer equipment, at a cost of $39,080,000 at January 2,
1999 and $55,734,000 at January 3, 1998. These assets are amortized on a
straight-line basis over the lease terms and amortization is included in
depreciation expense. Accumulated amortization of capital lease cost was
$37,770,000 and $49,760,000 at January 2, 1999 and January 3, 1998,
respectively. The related obligations are included in long-term debt (Note 2).
The company also leases warehouses and showroom space, customer service centers
and certain equipment under operating leases.
EXHIBIT 13 - PAGE 15
<PAGE>
At January 2, 1999, future minimum lease payments for all capital and operating
leases exceeding one year were as follows (000s omitted):
Capital Operating Total Future
Leases Leases Payments
--------- --------- ------------
1999 $ 875 $ 30,106 $ 30,981
2000 410 26,376 26,786
2001 82 19,483 19,565
2002 47 10,688 10,735
2003 -- 6,187 6,187
2004 and thereafter -- 8,649 8,649
--------- --------- ------------
Total Payments $ 1,414 $101,489 $102,903
--------- ------------
Less: amount representing interest 75
---------
Present value of capitalized lease
payments with a weighted average
interest rate of 5.6% $ 1,339
=========
Rental payments under noncancelable operating leases were $36,351,000,
$74,718,000 and $44,667,000 in 1998, 1997 and 1996, respectively.
At January 2, 1999, the company had commitments to purchase certain capital
assets of approximately $29,900,000.
Note 6 Earnings Per Share
Net income amounts presented in the accompanying consolidated statements of
income represent amounts available or related to shareholders. The following
table reconciles the denominator of the basic and diluted earnings per share
computations:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1998 1997 1996
------------ ------------ ------------
Weighted average common shares .................... 128,031,290 133,523,380 135,731,360
Dilutive incremental shares from assumed
conversions of options under stock option plans 1,883,888 191,116 183,948
------------ ------------ ------------
Weighted average common shares and
dilutive potential common shares .............. 129,915,178 133,714,496 135,915,308
============ ============ ============
</TABLE>
Note 7 Derivative Financial Instruments and Fair Value of Financial Instruments
The company has entered into interest rate swap agreements with a total notional
amount of $557,813,000 to fix the interest rate paid on portions of its
revolving credit facilities. The weighted average fixed interest rate paid on
the interest rate swap agreements was 5.5 percent while the floating rate
received in 1998 averaged 5.4 percent.
The carrying amount and fair value of the company's financial instruments are as
follows (000s omitted):
January 2, 1999 January 3, 1998
-------------------- --------------------
Carrying Fair Carrying Fair
Amount Value Amount Value
--------- --------- --------- ---------
Liabilities:
Revolving credit agreements .... $891,057 $891,057 $900,240 $900,240
Other obligations .............. 36,385 36,385 32,936 32,936
Interest rate swap agreements .. 1,972 8,611 -- 2,207
The following methods and assumptions were used to estimate the fair value of
each class of financial instruments:
Revolving Credit Facilities
The carrying values of the revolving credit facilities approximate their fair
values due to the floating market interest rates charged on those facilities.
EXHIBIT 13 - PAGE 16
<PAGE>
Notes to Consolidated Financial Statements (continued)
January 2, 1999, January 3, 1998 and December 28, 1996
Other Obligations
The carrying values of other obligations approximate their fair values due to
the interest rates charged on those agreements: either floating market rates or
fixed rates which approximated market rates available at January 2, 1999 and
January 3, 1998.
Interest Rate Swap Agreements
The fair values of the interest rate swap agreements were estimated by obtaining
quotes from brokers.
Note 8 Acquisition, Sale and Disposal, and Nonrecurring Charges
Disposal of Carpets International, Plc
On April 3, 1998, the company completed the disposition of Carpets
International, Plc, the company's wholly-owned U.K. subsidiary, which resulted
in a removal of certain assets, net of liabilities, of $16.6 million. The
disposal resulted in a charge to earnings of $47,952,000 ($20,300,000, net of
tax benefit) which was recorded in the fourth quarter of the year ended January
3, 1998.
Nonrecurring Charges
During 1996, the company recorded nonrecurring charges totaling $65,217,000
($50,691,000, net of tax benefit) related to its U.K. and Australian operations.
The charges include $16,115,000 of inventory markdowns which have been recorded
in cost of sales.
Charge to Record Store Closing Costs
In December 1997, the company announced a plan to close approximately 100
residential retail stores which resulted in a charge to operations of
$36,349,000 ($22,817,000, net of tax benefit) consisting primarily of reductions
in the carrying value of long-lived assets of approximately $13,430,000 and
reserves for exit costs and employee termination benefits of approximately
$17,440,000 and $5,479,000, respectively. Prior to this charge, the company
recorded store closing costs of $438,000 ($263,000, net of tax benefit). At
January 2, 1999, the reserve for remaining exit costs was $4,094,000.
Charge to Record Sale of Residential Retail Operations, Store Closing Costs and
Write-down of Certain Assets
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. The company incurred a charge to record the loss on the sale
of the residential retail operations, store closing costs and write-down of
certain assets of $132,303,000 ($92,660,000, net of tax benefit) related to
exiting its residential retail operations. Included in the charge were reserves
for exit costs, primarily lease termination fees, and employee termination
benefits of approximately $15,334,000 and $4,706,000, respectively. As of
January 2, 1999, exit cost reserves and employee termination benefit reserves
were $11,815,000 and $400,000, respectively.
Acquisition of Queen Carpet Corporation
On October 6, 1998, the company completed its merger with Queen Carpet
Corporation ("Queen") for approximately $579,135,000 consisting of approximately
19,444,000 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. As a
result of the sale of the 3,150,000 shares of Maxim stock during the fourth
quarter ended January 2, 1999, the company recorded a loss on the sale of equity
securities of $22,247,000 ($13,370,000, net of tax benefit).
The acquisition has been accounted for as a purchase transaction, and,
accordingly, the results of operations of Queen have been included in the
accompanying consolidated financial statements since October 7, 1998. The
purchase price has been allocated to assets and liabilities based on their
estimated fair value at the date of acquisition. The excess of the consideration
paid over the estimated fair value at the date of acquisition, currently
estimated at $318,600,000, has been recorded as goodwill and is being amortized
on the straight-line basis over 40 years. The following table summarizes on an
unaudited pro forma basis, the consolidated results of operations as though
Queen had been acquired on December 29, 1996 (000s except per share data):
Year Ended
January 2, January 3,
1999 1998
(Unaudited)
----------- -----------
Net Sales ................................ $4,163,433 $4,291,140
Net Income ............................... 47,822 46,333
Earnings per common share -
Basic and Diluted ...................... 0.33 0.30
EXHIBIT 13 - PAGE 17
<PAGE>
Note 9 Segment and Enterprise-Wide Information
Effective for the year ended January 2, 1999, the company adopted SFAS No. 131.
The prior years' segment information has been restated to present the company's
two reportable segments: wholesale manufacturing and residential retail.
The accounting policies of the segments are the same as those described in Note
1. Segment data include intersegment revenues as well as revenues generated
among marketing units.
The company is organized primarily on the basis of products produced and sold
which are distinguished by approximately 30 marketing units. Wholesale marketing
units which relate to internally manufactured carpet and related products have
been aggregated into the "wholesale manufacturing" segment. Marketing units
which primarily sell residential retail floor covering products have been
aggregated into the "residential retail" segment.
The company evaluates the performance of its segments and allocates resources to
them on the basis of sales, gross margin and "net divisional contribution" which
consists of gross margin less selling expense. While allocations of various
manufacturing costs such as depreciation are made to the marketing units,
long-lived assets and administrative costs are not allocated.
The table below presents information about reported segments for 1998, 1997 and
1996 (000s omitted):
Wholesale Residential
Manufacturing Retail Intercompany Consolidated
Operations Operations Eliminations Operations
----------- ----------- ----------- ------------
Net Sales
1998 $3,419,538 $ 341,769 $ (219,105) $3,542,202
1997 3,170,158 638,662 (233,046) 3,575,774
1996 2,913,467 351,790 (63,703) 3,201,554
Gross Margin
1998 $ 772,097 $ 128,273 $ (621) $ 899,749
1997 655,290 243,385 (3,373) 895,302
1996 575,535 140,951 -- 716,486
Selling Expense
1998 $ 321,208 $ 135,720 $ -- $ 456,928
1997 280,174 263,902 (1,014) 543,062
1996 272,855 121,297 -- 394,152
The following is sales and long-lived asset information by geographic area as of
and for 1998, 1997 and 1996 (000s omitted):
Sales Long-Lived Assets
--------------------------- ---------------------------
Year ended: U.S. Foreign U.S. Foreign
----------- ----------- ----------- -----------
1998 $3,371,757 $ 170,445 $1,131,188 $ 47,889
1997 3,248,014 327,760 832,087 69,114
1996 2,865,737 335,817 765,495 137,498
Foreign sales is based on the country in which the legal subsidiary is
domiciled. Revenue from no single foreign country was material to the
consolidated sales of the company.
EXHIBIT 13 - PAGE 18
<PAGE>
Notes to Consolidated Financial Statements (continued)
January 2, 1999, January 3, 1998 and December 28, 1996
Note 10 Quarterly Financial Data (Unaudited)
Summarized quarterly financial data for 1998, 1997 and 1996 is as follows (000s
except per share amounts):
1998 Quarters First Second (1) Third Fourth (2)
---------- ---------- ---------- ----------
Net Sales ..................... $ 864,985 $ 873,149 $ 851,634 $ 952,434
Gross Margin .................. 218,871 238,682 209,192 233,004
Net Income (Loss) ............. 19,505 (65,221) 39,617 26,731
Earnings Per Share-
Basic and Diluted (3) ....... 0.15 (0.54) 0.32 0.19
1997 Quarters First Second Third Fourth (4)
---------- ---------- ---------- ----------
Net Sales ..................... $ 808,653 $ 915,232 $ 922,997 $ 928,892
Gross Margin .................. 200,090 236,992 236,235 221,985
Net Income (Loss) ............. 10,748 25,231 25,335 (32,355)
Earnings Per Share-
Basic and Diluted ............ 0.08 0.19 0.19 (0.24)
1996 Quarters First (5) Second Third Fourth (6)
---------- ---------- ---------- ----------
Net Sales ..................... $ 657,856 $ 785,957 $ 881,760 $ 875,981
Gross Margin .................. 129,920 171,965 208,158 206,443
Net Income (Loss) ............. (15,584) 28,099 24,179 (2,671)
Earnings Per Share-
Basic and Diluted (7) ........ (0.11) 0.21 0.18 (0.02)
(1) Second quarter net income and per share amounts for 1998 include a charge
to record the sale of residential retail operations, store closing costs,
and write-down of certain assets of $92,660,000, or $.71 per share, net of
tax benefit. The charge was previously reported as $98,203,000; however, in
the fourth quarter, a reclassification of $5,543,000 was recorded reducing
the charge and increasing operating expenses.
(2) The fourth quarter net income and per share amounts for 1998 include a loss
on the sale of equity securities of $13,370,000, or $.09 per share, net of
tax benefit.
(3) The sum of the 1998 quarterly earnings per share amounts is different from
the annual earnings per share amounts because of differences in the
weighted average numbers of shares outstanding used in the quarterly and
annual computations.
(4) The fourth quarter net income and per share amounts for 1997 include store
closing costs of $22,817,000, or $.17 per share, net of tax benefit, and a
write-down of certain U.K. assets of $20,300,000, or $.15 per share, net of
tax benefit.
(5) The first quarter net income and per share amounts for 1996 include
nonrecurring charges of $26,519,000, or $.19 per share, net of tax benefit,
for the reduction in the carrying value of certain goodwill and property,
plant and equipment at the international operations and a provision for the
disposal of certain other assets.
(6) The fourth quarter net income and per share amounts for 1996 included
restructuring costs of $24,172,000 or $.18 per share, net of tax benefit,
related to woolen and Axminister production in the United Kingdom.
(7) The sum of the 1996 quarterly earnings per share amounts is different from
the annual earnings per share amounts because of differences in the
weighted average number of shares outstanding used in the quarterly and
annual computations.
EXHIBIT 13 - PAGE 19
<PAGE>
Report of Independent Public Accountants
To the Shareholders of Shaw Industries, Inc.:
We have audited the accompanying consolidated balance sheets of Shaw Industries,
Inc. (a Georgia corporation) and subsidiaries as of January 2, 1999 and January
3, 1998 and the related consolidated statements of income, shareholders'
investment, and cash flow for each of the three years in the period ended
January 2, 1999. These financial statements are the responsibility of the
company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Shaw Industries, Inc. and
subsidiaries as of January 2, 1999 and January 3, 1998 and the results of their
operations and their cash flow for each of the three years in the period ended
January 2, 1999 in conformity with generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 19, 1999
EXHIBIT 13 - PAGE 20
<PAGE>
<TABLE>
<CAPTION>
Ten-Year Financial Review
(Dollars in 000s except share data)
<S> <C> <C> <C> <C> <C>
1998 1997 1996 1995 1994
-----------------------------------------------------------------
Net Sales ........................................................ $ 3,542,202 $ 3,575,774 $ 3,201,554 $ 2,869,828 $ 2,788,527
Cost of Sales .................................................... 2,642,453 2,680,472 2,485,068 2,319,894 2,187,439
Selling, General and Administrative Expenses ..................... 620,878 722,590 541,338 393,868 366,189
Charge to Record Loss on Sale of Residential Retail Operations,
Store Closing Costs and Write-down of Certain Assets ........... 132,303 -- -- -- --
Pre-opening Expenses, Retail Operations .......................... -- 3,953 13,595 -- --
Charge to Record Store Closing Costs ............................. -- 36,787 -- -- --
Write-down of U.K. Assets ........................................ -- 47,952 -- -- --
Nonrecurring Charges ............................................. -- -- 49,102 6,967 --
Interest, Net .................................................... 62,553 60,769 42,442 41,901 30,022
Loss on Sale of Equity Securities ................................ 22,247 -- -- -- --
Other Expense (Income), Net ...................................... 4,676 (7,032) (3,609) 443 (4,922)
Income Before Income Taxes, Equity in Income of Joint Venture,
Extraordinary Item and Accounting Change ....................... 57,092 30,283 73,618 106,755 209,799
As a Percentage of Net Sales ................................. 1.6% 0.8% 2.3% 3.7% 7.5%
Effective Income Tax Rate ........................................ 67.3% 18.4% 59.0% 40.8% 37.9%
Income Before Equity in Income of Joint Venture,
Extraordinary Item and Accounting Change ..................... 18,685 24,697 30,155 63,152 130,389
Equity in Income of Joint Venture ................................ 1,947 4,262 3,868 1,229 --
Extraordinary Item ............................................... -- -- -- -- (3,363)
Accounting Change ................................................ -- -- -- (12,077) --
Net Income ....................................................... 20,632 28,959 34,023 52,304 127,026
As a Percentage of Net Sales ................................. 0.6% 0.8% 1.1% 1.8% 4.6%
As a Percentage of Average Total Assets ...................... 1.0% 1.5% 1.9% 3.1% 8.1%
As a Percentage of Average Invested Capital .................. 1.3% 1.9% 2.4% 3.9% 10.7%
As a Percentage of Average Shareholders' Investment .......... 2.9% 4.4% 4.9% 7.4% 17.7%
Earnings Per Share:
Basic ........................................................ 0.16 0.22 0.25 0.38 0.90
Diluted ...................................................... 0.16 (2) 0.22 (3) 0.25 (4) 0.38 (5) 0.89 (6)
Cash Dividends Per Share ......................................... 0.075 0.30 0.30 0.30 0.22
Property Additions, Net (including acquisitions) ................. 103,623 106,728 177,062 93,805 187,045
Depreciation and Amortization .................................... 80,598 94,954 90,906 91,083 84,898
Weighted Average Shares Outstanding:
Basic ........................................................ 128,031,290 133,523,380 135,731,360 135,872,432 141,431,607
Diluted ...................................................... 129,915,178 133,714,496 135,915,308 136,378,159 142,483,067
At Year-End:
Working Capital .............................................. 627,560 740,959 670,344 641,445 617,338
Current Ratio ................................................ 2.4 3.3 2.6 3.5 3.0
Property, Plant and Equipment, Net ........................... 716,428 624,379 655,141 631,990 656,178
Total Assets ................................................. 2,261,447 1,967,614 1,984,398 1,662,783 1,697,378
Total Long-Term Debt ......................................... 927,434 930,424 825,280 627,130 612,061
Shareholders' Investment ..................................... 797,368 637,534 671,711 710,189 713,025
Total Invested Capital (1) ................................... 1,724,802 1,567,958 1,496,991 1,337,319 1,325,086
Shareholders' Investment Per Share ........................... $ 5.66 $ 4.86 $ 5.06 $ 5.22 $ 5.20
</TABLE>
EXHIBIT 13 - PAGE 21
<PAGE>
<TABLE>
<CAPTION>
Ten-Year Financial Review (continued)
(Dollars in 000s except share data)
<S> <C> <C> <C> <C> <C>
1993 1992 1991 1990 1989
-----------------------------------------------------------------
Net Sales ........................................................ $ 2,476,282 $ 2,035,962 $ 1,618,923 $ 1,658,771 $ 1,266,142
Cost of Sales .................................................... 1,963,206 1,641,404 1,341,312 1,348,808 1,017,084
Selling, General and Administrative Expenses ..................... 301,790 240,192 188,363 179,381 138,708
Charge to Record Loss on Sale of Residential Retail Operations,
Store Closing Costs and Write-down of Certain Assets ........... -- -- -- -- --
Pre-opening Expenses, Retail Operations .......................... -- -- -- -- --
Charge to Record Store Closing Costs ............................. -- -- -- -- --
Write-down of U.K. Assets ........................................ -- -- -- -- --
Nonrecurring Charges ............................................. -- -- -- -- --
Interest, Net .................................................... 24,107 26,083 30,973 35,026 20,828
Loss on Sale of Equity Securities ................................ -- -- -- -- --
Other Expense (Income), Net ...................................... (2,530) 324 (74) (483) (640)
Income Before Income Taxes, Equity in Income of Joint Venture,
Extraordinary Item and Accounting Change ....................... 189,709 127,959 58,349 96,039 90,162
As a Percentage of Net Sales ................................. 7.7% 6.3% 3.6% 5.8% 7.1%
Effective Income Tax Rate ........................................ 38.0% 38.5% 38.3% 38.0% 38.4%
Income Before Equity in Income of Joint Venture,
Extraordinary Item and Accounting Change ..................... 117,636 78,695 35,985 59,515 55,567
Equity in Income of Joint Venture ................................ -- -- -- -- --
Extraordinary Item ............................................... -- -- -- -- --
Accounting Change ................................................ -- -- -- -- --
Net Income ....................................................... 117,636 78,695 35,985 59,515 55,567
As a Percentage of Net Sales ................................. 4.8% 3.9% 2.2% 3.6% 4.4%
As a Percentage of Average Total Assets ...................... 8.8% 7.7% 4.5% 8.0% 9.4%
As a Percentage of Average Invested Capital .................. 12.1% 10.5% 6.2% 11.1% 12.7%
As a Percentage of Average Shareholders' Investment .......... 17.5% 16.1% 12.8% 29.1% 29.4%
Earnings Per Share:
Basic ........................................................ 0.82 0.61 0.32 0.51 0.46
Diluted ...................................................... 0.81 0.59 0.31 0.49 0.45
Cash Dividends Per Share ......................................... 0.18 0.15 0.125 0.125 0.10
Property Additions, Net (including acquisitions) ................. 174,635 191,830 48,230 116,739 144,308
Depreciation and Amortization .................................... 82,416 67,414 62,075 60,734 38,600
Weighted Average Shares Outstanding:
Basic ........................................................ 142,946,223 129,742,222 111,850,981 117,330,116 120,084,604
Diluted ...................................................... 144,922,741 132,422,292 115,260,162 120,616,219 122,533,553
At Year-End:
Working Capital .............................................. 437,445 448,089 290,305 260,644 224,443
Current Ratio ................................................ 2.2 2.6 2.5 2.4 2.3
Property, Plant and Equipment, Net ........................... 551,873 453,276 344,182 341,266 293,030
Total Assets ................................................. 1,454,266 1,223,439 816,874 790,935 690,202
Total Long-Term Debt ......................................... 317,914 281,742 235,424 376,499 292,763
Shareholders' Investment ..................................... 723,830 619,977 358,643 201,667 207,434
Total Invested Capital (1) ................................... 1,041,744 901,719 594,067 578,166 500,197
Shareholders' Investment Per Share ........................... $ 5.04 $ 4.38 $ 2.89 $ 1.87 $ 1.73
</TABLE>
NOTE: All share data have been adjusted for two-for-one stock splits effected in
the form of stock dividends in December 1993, March 1992 and May 1989.
1. The sum of shareholders' investment and long-term debt.
2. $0.97 before nonrecurring items.
3. $0.51 before nonrecurring items.
4. $0.62 before nonrecurring items.
5. $0.50 before nonrecurring items.
6. $0.92 before nonrecurring items.
EXHIBIT 13 - PAGE 22
<PAGE>
<TABLE>
<CAPTION>
Stock Information
High and low stock prices and cash dividends paid by fiscal quarter
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1998 1997 1996 Dividends Paid
--------------------- ------------------ ----------------- ----------------------------------------
High Low High Low High Low 1998 1997 1996
---------- ---------- --------- -------- -------- -------- ------------ ------------ ------------
1st Quarter 15 3/4 10 15/16 14 1/8 11 7/8 14 7/8 10 3/4 7.50 cents 7.50 cents 7.50 cents
2nd Quarter 18 3/16 14 7/16 13 10 1/2 13 3/4 11 1/8 -- 7.50 cents 7.50 cents
3rd Quarter 19 15/16 15 1/8 12 7/8 10 1/2 15 3/8 11 1/2 -- 7.50 cents 7.50 cents
4th Quarter 24 1/4 12 1/16 13 7/16 10 7/8 13 3/8 11 -- 7.50 cents 7.50 cents
------------ ------------- -------------
Total 7.50 cents 30.00 cents 30.00 cents
------------ ------------- -------------
</TABLE>
EXHIBIT 13 - PAGE 23
EXHIBIT 21
Wholly-owned subsidiaries of the Registrant are Shaw Financial
Services, Inc., a Georgia corporation; Shaw Transport, Inc., a Georgia
corporation; Shaw Industries Australia, Pty., Ltd., an Australian corporation;
Shaw Contract Flooring Services, Inc., a Georgia corporation; Shaw Contract
Flooring Installation Services, Inc., a Georgia corporation; Shaw Retail
Properties, Inc., a Georgia corporation; Shaw Contract Properties, Inc., a
Georgia corporation; SHX Leasing, Inc. a Tennessee Corporation; Shaw Funding, a
Delaware corporation; Rug Decor by Shaw Corporation, a Georgia corporation;
Queen Carpet Corporation, a Delaware corporation; and Pro Installations, Inc. a
California corporation. The Company also has a 49% owned subsidiary, Terza, S.A.
de CV., a Mexican corporation.
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
of our reports included and incorporated by reference in this Form 10-K, into
the Company's previously filed Registration Statements file no. 33-45089, file
no. 333-04247, file no. 333-17303, file no. 333-33489, file no. 333-62645, file
no. 333-62915 and file no. 333-68341.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
March 29, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary information extracted from the consolidated
balance sheet of Shaw Industries, Inc. and subsidiaries as of January 2, 1999
and the related consolidated statements of income, shareholders' investment and
cash flows for the year ended January 2, 1999, and is qualified in its entirety
by reference to such financial statements.
Note: Earnings Per Share (EPS) have been calculated in accordance with FASB 128.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-02-1999
<PERIOD-END> JAN-02-1999
<CASH> 12,555
<SECURITIES> 0
<RECEIVABLES> 276,002
<ALLOWANCES> 21,512
<INVENTORY> 659,080
<CURRENT-ASSETS> 1,082,370
<PP&E> 1,499,748
<DEPRECIATION> 783,320
<TOTAL-ASSETS> 2,261,447
<CURRENT-LIABILITIES> 454,810
<BONDS> 0
0
0
<COMMON> 156,407
<OTHER-SE> 640,961
<TOTAL-LIABILITY-AND-EQUITY> 2,261,447
<SALES> 3,542,202
<TOTAL-REVENUES> 3,542,202
<CGS> 2,642,453
<TOTAL-COSTS> 2,642,453
<OTHER-EXPENSES> 774,287
<LOSS-PROVISION> 5,817
<INTEREST-EXPENSE> 62,553
<INCOME-PRETAX> 57,092
<INCOME-TAX> 38,407
<INCOME-CONTINUING> 18,685
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 20,632
<EPS-PRIMARY> 0.16
<EPS-DILUTED> 0.16
</TABLE>
