Exhibit 10.2
$200,000,000
SECOND AMENDED AND RESTATED 364-DAY
CREDIT AGREEMENT
dated as of
SEPTEMBER 25, 2000
among
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
THE BANKS PARTY HERETO
and
WACHOVIA BANK, N.A.,
AGENT
---------------------------
WACHOVIA SECURITIES, INC.,
ARRANGER
BANK OF AMERICA N.A.,
AS SYNDICATION AGENT
ABN AMRO BANK N.V.,
AS DOCUMENTATION AGENT
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of
September 25, 2000 among ▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION (the "Borrower"), the BANKS
party hereto (the "Banks"), WACHOVIA BANK, N.A., as Agent (the "Agent"),
WACHOVIA SECURITIES, INC., as Arranger (the "Arranger"), BANK OF AMERICA N.A.,
as Syndication Agent, and ABN AMRO BANK N.V., as Documentation Agent.
The parties hereto are parties to an Amended and Restated
364-Day Credit Agreement dated as of June 30, 1999 (as amended by the First
Amendment dated as of June 26, 2000 and in effect on the date hereof, the
"Existing Credit Agreement").
The Borrower has requested that the Existing Credit Agreement
be amended to, among other things, (i) decrease pro rata the aggregate amount of
the Commitments of all Banks from $260,000,000 to $200,000,000, (ii) change the
pricing of Loans thereunder, (iii) exclude a $223.9 million special charge to
continuing operations, recorded during the Borrower's second fiscal quarter
ended July 2, 2000, from the calculation of the financial ratio required by
Section 5.07, and (iv) modify certain of the representations, warranties and
covenants of the Borrower, all as set forth herein, and that the Existing Credit
Agreement be restated in its entirety as so amended, all as of the Second
Restatement Effective Date as hereinafter defined.
Accordingly, the parties hereto agree as follows:
SECTION 1.01. DEFINITIONS; INTERPRETATION. Capitalized terms
used but not otherwise defined herein have the respective meanings ascribed
thereto in the Existing Credit Agreement. The provisions hereof relating to the
Applicable Facility Fee Rate, the Applicable Utilization Fee Rate and the
Euro-Dollar Margin shall be deemed to have effect from the Second Restatement
Effective Date without retroactive effect.
SECTION 1.02. AMENDMENTS. Effective as of the Second
Restatement Effective Date, the Existing Credit Agreement is amended as follows
and, as so amended, is hereby restated in its entirety:
(1) The references on the cover page and in the introduction
to the aggregate amount of the Commitments are changed to refer to the aggregate
amount of $200,000,000, and Schedule 1 ("Commitment Schedule") is amended to
read in its entirety in accordance with Schedule 1 hereto.
(2) A new definition of "Applicable Facility Fee Rate" is
added to Section 1.01 in the appropriate alphabetical location, to read as
follows:
"APPLICABLE FACILITY FEE RATE" means, for any Rating Level
Period, the rate set forth below opposite the reference to such Rating
Level Period:
Rating Level Period Applicable Facility Fee Rate
------------------- ----------------------------
Rating Level I Period 0.105%
Rating Level II Period 0.125%
Rating Level III Period 0.175%
Rating Level IV Period 0.250%
Rating Level V Period 0.500%
PROVIDED, that each change in the Applicable Facility Fee Rate
resulting from a change from one Rating Level Period to another shall
be effective on the effective date of such change in the Rating Level
Period, and (ii) during the initial Rating Level Period while either
▇▇▇▇▇'▇ or S&P maintain the Borrower on "credit watch" status, Rating
Level III Period shall be deemed to apply.
(3) A new definition of "Applicable Utilization Fee Rate" is
added to Section 1.01 in the appropriate alphabetical location, to read as
follows:
"APPLICABLE UTILIZATION FEE RATE" means, for any Rating Level
Period, the rate set forth below opposite the reference to such Rating
Level Period:
Rating Level I Period 0.125%
Rating Level II Period 0.125%
Rating Level III Period 0.125%
Rating Level IV Period 0.000%
Rating Level V Period 0.000%
PROVIDED, that each change in the Applicable Utilization Fee Rate
resulting from a change from one Rating Level Period to another shall
be effective on the effective date of such change in the Rating Level
Period, and (ii) during the initial Rating Level Period while either
▇▇▇▇▇'▇ or S&P maintain the Borrower on "credit watch" status, Rating
Level III Period shall be deemed to apply.
(4) The definition of "CD Margin" is amended to read in its
entirety as follows:
"CD MARGIN" means, for any CD Loan during any Rating
Level Period, the rate per annum set forth below
opposite the reference to such Rating Level Period:
-2-
Rating Level Period CD Margin
------------------- ---------
Rating Level I Period 0.645%
Rating Level II Period 0.750%
Rating Level III Period 1.075%
Rating Level IV Period 1.375%
Rating Level V Period 1.875%
PROVIDED, that (i) each change in the CD Margin resulting from a change
from one Rating Level Period to another shall be effective on the
effective date of such change in the Rating Level Period, and (ii)
during the initial Rating Level Period while either ▇▇▇▇▇'▇ or S&P
maintain the Borrower on "credit watch" status, Rating Level III Period
shall be deemed to apply.
(5) The definition of "Euro-Dollar Margin" is amended to read
in its entirety as follows:
"EURO-DOLLAR MARGIN" means, for any Euro-Dollar Loan
during any Rating Level Period, the rate per annum
set forth below opposite the reference to such Rating
Level Period:
Rating Level Period Euro-Dollar Margin
------------------- ------------------
Rating Level I Period 0.520%
Rating Level II Period 0.625%
Rating Level III Period 0.950%
Rating Level IV Period 1.250%
Rating Level V Period 1.750%
PROVIDED, that (i) each change in the Euro-Dollar Margin resulting from
a change from one Rating Level Period to another shall be effective on
the effective date of such change in the Rating Level Period, and (ii)
during the initial Rating Level Period while either ▇▇▇▇▇'▇ or S&P
maintain the Borrower on "credit watch" status, Rating Level III Period
shall be deemed to apply.
(6) A new definition of "Rating Level Period" is added to
Section 1.01 in the appropriate alphabetical location, to read as follows:
"RATING LEVEL PERIOD" means a Rating Level I Period, a Rating
Level II Period, a Rating Level III Period, a Rating Level IV Period or
a Rating Level V Period; PROVIDED that:
(i) "RATING LEVEL I PERIOD" means a period during
which the ▇▇▇▇▇'▇ Rating is at or above Baa1 or
the S&P Rating is at or above BBB+;
-3-
(ii) "RATING LEVEL II PERIOD" means a period that is
not a Rating Level I Period during which the
▇▇▇▇▇'▇ Rating is at or above Baa2 or the S&P
Rating is at or above BBB;
(iii) "RATING LEVEL III PERIOD" means a period that
is neither a Rating Level I Period nor a Rating
Level II Period during which the ▇▇▇▇▇'▇ Rating
is at or above Baa3 or the S&P Rating is at or
above BBB-;
(iv) "RATING LEVEL IV PERIOD" means a period that is
neither a Rating Level I Period, nor a Rating
Level II Period, nor a Rating Level III Period
during which the ▇▇▇▇▇'▇ Rating is at or above
Ba1 or the S&P Rating is at or above BB+; and
(v) "RATING LEVEL V PERIOD" means each period other
than a Rating Level I Period, a Rating Level II
Period, a Rating Level III Period or a Rating
Level IV Period, and shall include any period
during which neither a ▇▇▇▇▇'▇ Rating nor an
S&P Rating shall be in effect;
and PROVIDED, FURTHER, that:
(x) if the ▇▇▇▇▇'▇ Rating and the S&P Rating differ
by more than one rating level, then the
applicable Rating Level Period shall be one
rating level higher than the Rating Level
Period resulting from the application of the
lower of such ratings (for which purpose the
rating level representing Rating Level I Period
is deemed to be the highest rating level); and
(y) the terms "▇▇▇▇▇'▇ RATING" and "S&P RATING"
mean, at any time, the rating of the Borrower's
senior unsecured, non-credit enhanced,
long-term debt obligations then most recently
announced by ▇▇▇▇▇'▇ or S&P, respectively.
(7) Section 2.09 is amended to read in its entirety as
follows:
SECTION 2.09. FEES.
(a) FACILITY FEE. The Borrower shall pay to the
Agent, for the account of the Banks ratably in proportion to
their respective Credit Exposures, a facility fee (the
"FACILITY FEE") at a rate per annum equal to
-4-
the Applicable Facility Fee Rate, payable quarterly in arrears
on each Quarterly Payment Date and on the day on which the
Commitments terminate in their entirety (and, if later, on
the day on which the Credit Exposures are reduced to zero).
(b) UTILIZATION FEE. For each day on which the
aggregate outstanding principal amount of Committed Loans
equals or exceeds 25% of the aggregate amount of the
Commitments, the Borrower shall pay to the Agent, for the
account of the Banks ratably in accordance with the respective
aggregate outstanding principal amounts of the Committed Loans
made by them, a utilization fee (the "UTILIZATION FEE") at a
rate per annum equal to the Applicable Utilization Fee Rate on
the aggregate outstanding amount of the Committed Loans,
payable on each day on which interest is payable under Section
2.07.
(c) AGENT'S AND ARRANGER'S FEE. The Borrower shall
pay to each of the Agent and the Arranger, for its own
account, such agency fee and arranger fee, respectively, as
has been separately agreed between the Borrower, the Agent and
the Arranger.
(8) (a) Section 4.04(a) is amended by changing the date
"January 3, 1999" to "January 2, 2000", and by changing the phrase "1998 Form
10-K, as amended by Borrower's Form 10-K/A filed June 7, 1999 with the SEC" to
read "1999 Form 10-K, as amended,".
(b) Section 4.04(b) is amended by changing the date "April 4,
1999" to "July 2, 2000", and by changing the phrase "latest Form 10-Q, as
amended by Borrower's Form 10-Q/A filed June 7, 1999 with the SEC" to read "Form
10-Q for the second fiscal quarter ended July 2, 2000".
(c) Section 4.04(c) is amended by changing the date "April 4,
1999" to "August 21, 2000".
(d) Section 4.05 is amended by changing the phrase "1998
Form 10-K" to read "1999 Form 10-K".
(9) Section 5.07 is amended to read in its entirety as
follows:
SECTION 5.07. OPERATING CASH FLOW RATIO. At no date
shall the ratio of (i) Consolidated Operating Cash Flow for
the four most recent consecutive fiscal quarters of the
Borrower ended on or most recently prior to such date to (ii)
Total Borrowed Funds as of such date, be less than (a) .35 for
the Borrower's fiscal quarters ending October 1, 2000 and
December 31, 2000, (b) .30 for the Borrower's fiscal quarter
ending April 1, 2001 and (c) .20 for the Borrower's fiscal
quarters ending on and after July 1, 2001.
-5-
The calculation of Consolidated Operating Cash Flow
for any period of four consecutive fiscal quarters which
includes the Borrower's fiscal quarter ending July 2, 2000
shall exclude the special charges totaling $223.9 million
incurred by the Borrower and described in Note 6 to Condensed
Consolidated Financial Statements set forth in Borrower's
Quarterly Report on Form 10-Q for its fiscal quarter ended
July 2, 2000.
(10) A new Section 5.13 is added, to read in its entirety
as follows:
SECTION 5.13. STOCK REPURCHASES. During the period
from and including September 25, 2000 to and including
December 31, 2000, the Borrower will not repurchase, or enter
into any agreement to purchase, directly or indirectly, any of
its shares of capital stock.
SECTION 1.03. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Agent and the Banks as of the Second Restatement
Effective Date that each of the representations and warranties set forth in
Article 4 of the Existing Credit Agreement, as amended hereby, is true on and as
of the Second Restatement Effective Date as if made on and as of the Second
Restatement Effective Date.
SECTION 1.04. SECOND RESTATEMENT EFFECTIVE DATE. This
Agreement shall become effective on the date (the "SECOND RESTATEMENT EFFECTIVE
DATE") on which the Agent notifies the Borrower that the following conditions
have been satisfied:
(i) EXECUTION AND DELIVERY. This Agreement shall have been
executed and delivered by the Borrower, the Agent and the Required
Banks.
(ii) CORPORATE DOCUMENTS. The Agent shall have received all
such documents as it may reasonably request relating to the existence
of the Borrower, the corporate authority for and the validity of this
Agreement and any other matters relevant hereto, all in form and
substance reasonably satisfactory to the Agent.
(iii) OPINIONS. The Agent shall have received (a) an opinion
of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for
the Borrower substantially in the form of Exhibit A-1 hereto, (b) an
opinion of the Borrower's Vice President-General Counsel or its
Assistant General Counsel, substantially in the form of Exhibit A-2
hereto, and (c) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC,
special counsel for the Agent, substantially in the form of Exhibit A-3
hereto, each dated the Second Restatement Effective Date.
(iv) NOTES. The Agent shall have received for the account of
each Bank a duly executed Note dated the Second Restatement Effective
Date complying with the
-6-
provisions of Section 2.05 of the Existing Credit Agreement against
delivery of the Notes outstanding under the Existing Credit Agreement
marked "cancelled".
(v) FEES. The Agent shall have received evidence of payment of
(a) the up-front fee as provided for in the fee letter dated as of the
date hereof between the Borrower and the Agent and (b) any costs and
expenses then payable (to the extent invoiced) under Section 1.05
hereof.
The Agent shall promptly notify the Banks of the occurrence of the Second
Restatement Effective Date.
SECTION 1.05. COSTS AND EXPENSES. The Borrower shall pay
all reasonable out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Agent, in connection with the
execution and delivery of this Agreement.
SECTION 1.06. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all the Banks.
(b) This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
(c) This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument. This Agreement and the fee
letter referred to herein constitute the entire agreement and understanding
among the parties hereto and supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof and
thereof.
-7-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
WACHOVIA BANK, N.A., as Agent and
a Bank
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V.
By:/s/ ▇▇▇▇ ▇. Honda
-----------------------------------
Name: ▇▇▇▇ ▇. Honda
Title: Vice President
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By:/s/ F.C.H. ▇▇▇▇▇
-----------------------------------
Name: F.C.H. Asbhy
Title: Senior Manager Loan
Operations
CIBC INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp.,
as Agent
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK, NASHVILLE, N.A.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE NORTHERN TRUST COMPANY
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Second Vice President
BANCA NAZIONALE DEL LAVORO
S.P.A. NEW YORK BRANCH
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
THE BANK OF NEW YORK
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
AMSOUTH BANK f/k/a
FIRST AMERICAN NATIONAL BANK
By:/s/ ▇▇▇▇▇▇▇▇ ▇. Tutor
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tutor
Title: Vice President
KBC BANK N.V.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
THE SUMITOMO BANK, LTD.
By:/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
UNION PLANTERS BANK, N.A.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
-12-
SCHEDULE 1
COMMITMENT SCHEDULE
Bank Commitment
---- ----------
Wachovia Bank, N.A................................................................ 20,000,000
Bank of America N.A............................................................... 17,000,000
ABN AMRO Bank N.V................................................................. 17,000,000
Deutsche Bank AG, New York and/or Cayman Islands Branch........................... 15,000,000
The Bank of Nova Scotia........................................................... 13,000,000
SunTrust Bank, Nashville, N.A..................................................... 13,000,000
The Northern Trust Company........................................................ 13,000,000
Bank of Tokyo-Mitsubishi Trust Company............................................ 13,000,000
Union Planters Bank, N.A.......................................................... 13,000,000
Banco Nazionale del Lavoro S.p.A., New York Branch................................ 11,000,000
The Bank of New York.............................................................. 11,000,000
CIBC Inc.......................................................................... 10,000,000
First Union National Bank......................................................... 10,000,000
First American National Bank...................................................... 10,000,000
KBC Bank N.V...................................................................... 7,000,000
The Sumitomo Bank Ltd............................................................. 7,000,000
TOTAL $200,000,000
============
EXHIBIT A-1
[FORM OF OPINION OF MILBANK, TWEED, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP]
[Second Restatement Effective Date]
Each of the Banks party
to the Agreement
referred to below
Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special New York counsel to ▇▇▇▇▇▇ & ▇▇▇▇▇
Corporation, a corporation organized under the laws of Tennessee (the
"BORROWER"), in connection with the Second Amended and Restated 364-Day Credit
Agreement dated as of September 25, 2000 (the "AGREEMENT") among the Borrower,
the lenders named therein (the "BANKS"), Wachovia Bank, N.A., as Agent (in such
capacity, the "AGENT"), Wachovia Securities, Inc., as Arranger, Bank of America
N.A., as Syndication Agent, and ABN AMRO Bank N.V., as Documentation Agent,
providing for loans to be made by said lenders to the Borrower in an aggregate
principal amount at any time outstanding not exceeding $200,000,000. Terms
defined in the Agreement are used herein as defined therein. This opinion is
being delivered pursuant to Section 1.04(iii)(a) of the Agreement.
In rendering the opinions expressed below, we have examined the
Existing Credit Agreement, the Agreement and the Notes and such corporate
records of the Borrower and such other documents as we have deemed necessary as
a basis for the opinions expressed below. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity with authentic original documents of all
documents submitted to us as copies. When relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
Agreement or certificates of appropriate representatives of the Borrower.
In rendering the opinions expressed below, we have assumed, with
respect to the Agreement and the Notes, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except, to the extent provided
below, as to the Borrower) constitute legal, valid, binding
and enforceable obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly authorized;
and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate
or other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Agreement constitutes, and each
Note issued pursuant thereto when duly executed and delivered pursuant thereto
will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally and except as
the enforceability of thereof is subject to the application of general
principles of equity (regardless of whether considered in a proceeding in equity
or at law), including, without limitation, (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the comments and qualifications
set forth in our opinion dated ___, 1999 with respect to the Existing Credit
Agreement, a copy of which is attached hereto.
The foregoing opinions are limited to matters involving the Federal
laws of the United States and the law of the State of New York, and we do not
express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 1.04(iii)(a) of the
Agreement, provided to you by us in our capacity as special New York counsel to
the Borrower and may not be relied upon by any Person for any purpose other than
in connection with the transactions contemplated by the Agreement without, in
each instance, our prior written consent.
Very truly yours,
-2-
EXHIBIT A-2
[FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION]
[Second Restatement Effective Date]
Each of the Banks party
to the Agreement
referred to below
Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Ladies and Gentlemen:
I am [Vice President-General Counsel][Assistant General Counsel] of
▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a corporation organized under the laws of Tennessee
(the "BORROWER"), and I, or attorneys under my supervision, have acted as
counsel to the Borrower in connection with the Second Amended and Restated
364-Day Credit Agreement dated as of September 25, 2000 (the "AGREEMENT") among
the Borrower, the banks party thereto (the "BANKS"), Wachovia Bank, N.A., in its
capacity as agent for said Banks (the "AGENT"), Wachovia Securities, Inc., as
Arranger, Bank of America N.A., as Syndication Agent, and ABN AMRO Bank N.V., as
Documentation Agent, providing for, among other things, the making of loans by
the Banks in an aggregate principal amount up to $200,000,000. All capitalized
terms used but not defined herein have the respective meanings given to such
terms in the Agreement.
In rendering the opinions expressed below, I have examined such
corporate records and documents as I have deemed necessary as a basis for the
opinions expressed below.
In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity with authentic original documents of all documents submitted to me as
copies. When relevant facts were not independently established, I have relied
upon statements of governmental officials and upon representations made in or
pursuant to the Agreement and the Notes and certificates of appropriate
representatives of the Borrower.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as I have deemed necessary as a basis for the opinions
expressed below, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Tennessee, and has all
corporate powers and all material
governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
2. Each of the Agreement and the Notes has been duly
authorized, executed and delivered by the Borrower. The execution,
delivery and performance by the Borrower of the Agreement and the Notes
are within the Borrower's corporate powers, (i) have been duly
authorized by all necessary corporate action on the part of the
Borrower, (ii) require no action by or in respect of, or filing with,
any governmental body, agency or official (other than as may be
required of any particular Bank) and (iii) do not contravene or
constitute a default under (x) any provision of any law or regulation
applicable to the Borrower, (y) the charter or by-laws of the Borrower
or (z) any instrument or agreement evidencing or governing Material
Debt of the Borrower or any of its Significant Subsidiaries known to me
or any material agreement, judgment, injunction, order, decree or other
instrument known to me to be binding upon the Borrower, or result in
the creation or imposition of any Lien on any asset of the Borrower or
any of its Significant Subsidiaries under any of the foregoing.
3. Except as set forth in the Borrower's (i) Annual Report on
Form 10-K for the fiscal year ended January 2, 2000, (ii) Quarterly
Report on Form 10-Q for the quarter ended July 2, 2000 and (iii)
Current Report on Form 8-K dated August 28, 2000, to the best of my
knowledge, there is no action, suit or proceeding pending against, or
threatened against or affecting, the Borrower or any of its Significant
Subsidiaries before any court or arbitrator or any governmental body,
agency or official, which could reasonably be expected to materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole or which in any manner draws into
question the validity of the Agreement or the Notes.
The foregoing opinions are limited to matters involving the federal
laws of the United States and the laws of the State of Tennessee, and I do not
express any opinion as to the laws of any other jurisdiction.
This opinion letter is provided to you pursuant to Section 1.04(iii)(b)
of the Agreement, and may not be relied upon by any Person for any purpose other
than in connection with the transactions contemplated by the Agreement without,
in each instance, my prior written consent.
Very truly yours,
-2-
EXHIBIT A-3
[OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC]
[Second Restatement Effective Date]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Dear Ladies and Gentlemen:
We have participated in the preparation of the Second Amended and
Restated 364-Day Credit Agreement (the "AGREEMENT") dated as of September 25,
2000 among ▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a Tennessee corporation (the "BORROWER"),
the banks listed on the signature pages thereof (the "BANKS") and Wachovia Bank,
N.A., as Agent (the "AGENT"), and have acted as special counsel for the Agent
for the purpose of rendering this opinion pursuant to Section 1.04(iii)(c) of
the Agreement. Terms defined in the Agreement are used herein as therein
defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
Agreement constitutes, and each Note issued pursuant thereto when duly executed
and delivered pursuant thereto will constitute, a valid and binding agreement of
the Borrower, in each case enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of Georgia and the foregoing
opinion is limited to the laws of the State of Georgia and the Federal laws of
the United States of America. Insofar as the foregoing opinion involves matters
governed by the laws of Tennessee, we have relied, without independent
investigation, upon the opinion of [▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇], a copy of which has
been delivered to you. In giving the foregoing opinion, we express no opinion as
to the effect (if any) of any law of any jurisdiction (except the State of
Georgia) in which any Bank is located which limits the rate of interest that
such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or by
any other person without our prior written consent.
Very truly yours,
