EXHIBIT (4d)
RUSSELL CORPORATION
AMENDMENT NO. 9
As of January 31, 2002
The Prudential Insurance Company of America
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102
Ladies and Gentlemen:
Russell Corporation, an Alabama corporation (hereinafter, the
"COMPANY"), together with its successors and assigns, agrees with you as
follows:
1. PRIOR NOTE ISSUANCE.
The Company issued and sold:
(A) One Hundred Million Dollars ($100,000,000) in
aggregate principal amount of its Senior Notes due November 30, 2008
(as amended from time to time prior to the date hereof, the "EXISTING
1995 SENIOR NOTES," and as amended by this Amendment No. 9, the "1995
SENIOR NOTES") pursuant to that certain Note Agreement dated as of
December 7, 1995, as amended by those various Letter Agreements dated
November 17, 1998, June 5, 2001, as of June 30, 2001, September 17,
2001, an additional Letter Agreement dated September 17, 2001 (the
"ADDITIONAL PRUDENTIAL LETTER"), October 15, 2001, November 29, 2001
and December 14, 2001, respectively (as in effect immediately prior to
giving effect to the Amendments (as defined below) provided for hereby,
the "EXISTING 1995 NOTE AGREEMENT").
(B) One Hundred Twenty-Five Million Dollars
($125,000,000) in aggregate principal amount of its Senior Notes due
August 28, 2007 (as amended from time to time prior to the date hereof,
the "EXISTING 1997 SENIOR NOTES," and together with the Existing 1995
Senior Notes, collectively, the "EXISTING SENIOR NOTES"; the Existing
1997 Notes as amended by this Amendment No. 9, the "1997 SENIOR NOTES,"
and together with the 1995 Senior Notes, collectively, the "SENIOR
NOTES") pursuant to that certain Note Agreement dated as of August 28,
1997, as amended by
those various Letter Agreements dated November 17, 1998, as of June 5,
2001, June 30, 2001, September 17, 2001, October 15, 2001, November 29,
2001 and December 14, 2001, respectively, and the Additional Prudential
Letter (as in effect immediately prior to giving effect to the
Amendments (as defined below) provided for hereby, the "EXISTING 1997
NOTE AGREEMENT," and together with the Existing 1995 Note Agreement,
collectively, the "EXISTING NOTE AGREEMENTS").
The register for the registration and transfer of the Senior Notes
indicates that The Prudential Insurance Company of America ("PRUDENTIAL") is
currently the holder of the entire outstanding principal amount of the Senior
Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Existing Note Agreements as amended by this
Amendment No. 9 (as so amended, the "NOTE AGREEMENTS").
3. AMENDMENTS TO THE EXISTING NOTE AGREEMENTS AND EXISTING NOTES.
Subject to Section 5, Prudential and the Company hereby agree to each
of the amendments to the Existing Note Agreements and the Existing Notes as
provided for by this Amendment No. 9 in the manner specified in Exhibit A. Such
amendments are referred to herein, collectively, as the "AMENDMENTS."
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Amendment No. 9 and to consent to the
Amendments, the Company represents and warrants as follows:
4.1. ORGANIZATION, POWER AND AUTHORITY, ETC.
The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of Alabama and has all requisite corporate power
and authority to enter into and perform its obligations under this Amendment No.
9.
4.2. SUBSIDIARIES.
Schedule 4.2 attached hereto states the names of each of the Company's
Subsidiaries and its jurisdiction of incorporation. All such Subsidiaries are
directly or indirectly 100% owned by the Company. Each of the Company and the
Subsidiaries has good and marketable title to all shares it purports to own of
the stock of each Subsidiary, free and clear in each case of any Lien except for
Liens granted pursuant to the Collateral Documents (defined in Section 5.2). All
such shares have been duly issued and are fully paid and non-assessable.
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4.3. LEGAL VALIDITY.
The execution and delivery of this Amendment No. 9 by the Company and
compliance by the Company with its obligations under this Amendment No. 9, the
Note Agreements and the Notes (a) are within the corporate powers of the
Company; (b) are legal and do not violate any provisions of any law or any order
of any court or governmental authority or agency and do not conflict with or
result in any breach of any of the terms, conditions or provisions of, or
constitute a default under the Articles of Incorporation or By-laws of the
Company or any indenture or other agreement or instrument to which the Company
is a party or by which it may be bound or result in the imposition of any Liens
or encumbrances on any property of the Company; and (c) has been duly authorized
by proper corporate action on the part of the Company and its stockholders (if
necessary), executed and delivered by a duly authorized officer of the Company,
and constitutes a legal, valid and binding obligation, contract and agreement of
the Company, enforceable in accordance with its terms.
4.4. NO DEFAULTS.
After giving effect to the Amendments set forth in this Amendment No.
9, no Default or Event of Default will exist.
4.5. COMPLIANCE WITH LAW.
(A) The execution, delivery and performance of this
Amendment No. 9 by the Company and the compliance by the Company with
all of the provisions of this Amendment No. 9, the Note Agreements and
the Notes will not violate any law, ordinance, franchise, governmental
rule or regulation to which it is subject (including, without
limitation, any Environmental Law).
(B) Neither the Company nor any Subsidiary has failed to
obtain any license, permit, franchise or other governmental
authorization necessary to the ownership of its property or to the
conduct of its business; which violation or failure to obtain would
materially affect adversely the business, prospects, profits,
properties or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, or materially impair the ability of the
Company to perform its obligations contained in the Amendment No. 9,
the Note Agreements and the Notes.
(C) Neither the Company nor any Subsidiary is in default
with respect to any order of any court or governmental authority or
arbitration board or tribunal.
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4.6. FULL DISCLOSURE.
Neither the financial statements and other certificates previously
provided to Prudential pursuant to the provisions of the Existing Note
Agreements nor the statements made in this Amendment No. 9 nor any other written
statements furnished by or on behalf of the Company to Prudential in connection
with the proposal and negotiation of the Amendments, taken as a whole, contain
any untrue statement of a material fact or omit a material fact necessary to
make the statements contained therein and herein not misleading. There is no
fact relating to any event or circumstance that has occurred or arisen since
December 31, 2000 that the Company has not publicly disclosed or has otherwise
disclosed to Prudential in writing that has had or, so far as the Company can
now foresee, will have a material adverse effect on the properties, business,
prospects, profits or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
5. EFFECTIVENESS OF AMENDMENTS.
The Amendments shall become effective on the date (the "AMENDMENT NO. 9
EFFECTIVE DATE") upon which all of the following conditions precedent have been
satisfied:
5.1. EXECUTION AND DELIVERY OF THIS AMENDMENT NO. 9.
The Company and Prudential shall have executed and delivered a
counterpart of this Amendment No. 9.
5.2. COLLATERAL DOCUMENTS.
A fully executed Guarantee and Collateral Agreement ("COLLATERAL
AGREEMENT") dated as of December 14, 2001 by and among the Company, Russell
Financial Services, Inc., Russell Asset Management, Inc., RINTEL Properties,
Inc., DeSoto Mills, Inc., Cross Creek Apparel, LLC, and Cross Creek Holdings,
Inc. in favor of Wachovia Bank, N.A. as collateral agent ("COLLATERAL AGENT")
for Prudential and the other Secured Parties (as that term is defined in the
Intercreditor Agreement) in the form of Exhibit 5.2 hereto including any
mortgages, Uniform Commercial Code financing statements and other agreements or
instruments evidencing Liens granted in favor of the Collateral Agent
(collectively and together with the Collateral Agreement, the "COLLATERAL
DOCUMENTS") shall have been delivered to Prudential. A Consent and Confirmation
fully executed by the Company and each Subsidiary party thereto shall also have
been delivered to Prudential.
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5.3. LEGAL OPINION.
Prudential shall have received the opinion of (a) Alston & Bird LLP and
(b) Christopher Champion Esq., in-house counsel for the Company, covering such
matters relating to this Amendment No. 9, the Note Agreements and the Notes as
Prudential shall have reasonably requested.
5.4. FEES AND EXPENSES.
(A) The Company shall have paid all costs and expenses of
Prudential relating to this Amendment No. 9 in accordance with Section
6 hereof (including, without limitation, attorney's fees and
disbursements).
(B) The Company shall have paid the amendment fees
described in Section 7 hereof to Prudential.
5.5. REPRESENTATIONS AND WARRANTIES.
The representations and warranties set forth in Section 4 hereof shall
be true and correct as of the Amendment No. 9 Effective Date.
5.6. 1992 NOTE AGREEMENTS.
Prudential shall have received evidence reasonably satisfactory to it
that the Company's Note Agreements dated as of December 1, 1992 with Teachers
Insurance and Annuity Association of America, Allstate Life Insurance Company,
Connecticut General Life Insurance Company and Connecticut General Life
Insurance Company on behalf of one or more separate accounts and subsequent
transferees of notes thereunder (including Prudential) shall have been amended
on or before the date hereof on the terms substantially identical to the terms
of this Amendment No. 9.
5.7. WACHOVIA DOCUMENTS.
Prudential (or its special counsel) shall have received a fully
executed copy of the Amended and Restated Credit Agreement dated as of January
31, 2002 among the Company, Russell Europe Limited, Wachovia Bank, N.A. as
Administrative Agent and the various other institutions listed on the signature
pages thereto, certified as true, correct and complete by the Company,
substantially in the form attached hereto as Exhibit 5.7.
5.8. SUNTRUST DOCUMENTS.
Prudential (or its special counsel) shall have received a fully
executed copy of the Amended and Restated TermLoan/Bankers' Acceptance Agreement
dated as of January 31, 2002 by and between the Company and SunTrust Bank
(formerly
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known as Trust Company Bank), certified as true, correct and complete by the
Company, substantially in the form attached hereto as Exhibit 5.8.
5.9. SALE AND LEASEBACK OF MONTGOMERY.
The Company shall have entered into an engagement letter on terms
reasonably satisfactory to Prudential regarding the sale and leaseback of the
Company's Montgomery, Alabama distribution center.
5.10. RECEIVABLES PURCHASE AGREEMENT.
The Company and Russell Financial Services, Inc. ("RUSSELL FINANCIAL")
shall have entered into the Accounts Receivable Purchase Agreement dated as of
the date hereof on terms reasonably satisfactory to Prudential, providing for
the sale by the Company and/or Russell Financial of receivables for the amount
of $50,000,000.
5.11. PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with this Amendment No. 9 and all
documents and papers relating hereto shall be reasonably satisfactory to
Prudential and its special counsel. Prudential and its special counsel shall
have received copies of such documents and papers (whether or not specifically
referred to above in this Section 5) as they may reasonably request in
connection therewith, in form and substance satisfactory to them.
6. EXPENSES.
Whether or not the Amendments become effective, the Company will
promptly pay, on the Amendment No. 9 Effective Date or, if the Amendments have
not become effective then within three Business Days of receipt of an invoice
therefor, all fees, expenses and costs relating to this Amendment No. 9,
including, but not limited to, the fees of your special counsel, Bingham Dana
LLP, incurred in connection with the preparation, negotiation and delivery of
this Amendment No. 9 and any other documents related thereto to the extent set
forth in a statement delivered to the Company at least one Business Day before
the Amendment No. 9 Effective Date. In addition, the Company will pay all such
fees, expenses and costs set forth in any subsequent statement within 30 days of
its receipt thereof. Nothing in this Section shall limit the Company's
obligations pursuant to 9.4 of the Existing Note Agreements.
7. AMENDMENT FEES.
Prior to the effectiveness of this Amendment No. 9, the Company shall
have paid to Prudential an amendment fee equal to 0.20% of the outstanding
principal amount of the Senior Notes in the manner and to the accounts specified
in the
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Existing Note Agreements for payments of principal and interest on the
Senior Notes. Also, pursuant to the Additional Prudential Letter the Company
shall have paid to Prudential an amendment fee equal to 0.10% of the outstanding
principal amount of the Senior Notes in the manner and to the accounts described
in the preceding sentence.
8. MISCELLANEOUS.
8.1. PART OF EXISTING NOTE AGREEMENTS; FUTURE REFERENCES, ETC.
This Amendment No. 9 shall be construed in connection with and as a
part of the Existing Note Agreements and, except as expressly amended by this
Amendment No. 9, all terms, conditions and covenants contained in the Existing
Note Agreements are hereby ratified and shall be and remain in full force and
effect. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Amendment No. 9
may refer to the Existing Note Agreements without making specific reference to
this Amendment No. 9, but nevertheless all such references shall include this
Amendment No. 9 unless the context otherwise requires.
8.2. COUNTERPARTS.
This Amendment No. 9 may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
8.3. GOVERNING LAW.
THIS AMENDMENT NO. 9 SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW JERSEY EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW
JERSEY.
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NEXT PAGE IS SIGNATURE PAGE.]
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If you are in agreement with the foregoing, please so indicate by
signing the acceptance below on the accompanying counterpart of this Amendment
No. 9 and returning it to the Company, whereupon it will become a binding
agreement between you and the Company.
RUSSELL CORPORATION
By:
-------------------------------------
Name:
Title:
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The foregoing Amendment No. 9 is hereby accepted as of the date first
above written. By its execution below, the undersigned represents that it is
either the registered owner of one or more of the Senior Notes or is the
beneficial owner of one or more of the Senior Notes and is authorized to enter
into this Amendment No. 9 in respect thereof.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
-------------------------------------
Name:
Title:
9
SCHEDULE 4.2
[SUBSIDIARIES]
- ------------------------------------------------------------------------------------------------------------------------
SUBSIDIARIES JURISDICTION OF
FORMATION
- ------------------------------------------------------------------------------------------------------------------------
Domestic:
- ---------
Alexander City Flying Service, Inc. Alabama
- ------------------------------------------------------------------------------------------------------------------------
Cross Creek Apparel, LLC North Carolina
- ------------------------------------------------------------------------------------------------------------------------
Cross Creek Holdings, Inc. Delaware
- ------------------------------------------------------------------------------------------------------------------------
DeSoto Mills, Inc. Alabama
- ------------------------------------------------------------------------------------------------------------------------
Jerzees Apparel, LLC Georgia
- ------------------------------------------------------------------------------------------------------------------------
Mossy Oak Apparel Company Delaware
- ------------------------------------------------------------------------------------------------------------------------
RINTEL Properties, Inc. Delaware
- ------------------------------------------------------------------------------------------------------------------------
Russell Apparel, LLC Alabama
- ------------------------------------------------------------------------------------------------------------------------
Russell Asset Management, Inc. Delaware
- ------------------------------------------------------------------------------------------------------------------------
Russell Athletic, Inc. Georgia
- ------------------------------------------------------------------------------------------------------------------------
Russell Athletic West, Inc. Nevada
- ------------------------------------------------------------------------------------------------------------------------
Russell Financial Services, Inc. Delaware
- ------------------------------------------------------------------------------------------------------------------------
Russell Servicing Company, Inc. Alabama
- ------------------------------------------------------------------------------------------------------------------------
Russell Corporation Delaware
- ------------------------------------------------------------------------------------------------------------------------
Russell Yarn LLC Alabama
- ------------------------------------------------------------------------------------------------------------------------
Foreign:
- --------
Athletic de Camargo S.A. de C.V. Mexico
- ------------------------------------------------------------------------------------------------------------------------
Citygate Textiles Limited United Kingdom
- ------------------------------------------------------------------------------------------------------------------------
Cross Creek de Honduras, S.A. de C.V. Honduras
- ------------------------------------------------------------------------------------------------------------------------
Cross Creek de Jimenez, S.A. de C.V. Mexico
- ------------------------------------------------------------------------------------------------------------------------
Eagle R Holdings Limited United Kingdom
- ------------------------------------------------------------------------------------------------------------------------
Jerzees Campeche, S.A. de C.V. Mexico
- ------------------------------------------------------------------------------------------------------------------------
Jerzees Chloma, S.A. Honduras
- ------------------------------------------------------------------------------------------------------------------------
Jerzees de Buena Vista, S.A. Honduras
- ------------------------------------------------------------------------------------------------------------------------
Jerzees de Honduras, S.A. de C.V. Honduras
- ------------------------------------------------------------------------------------------------------------------------
Jerzees Yucatan, S.A. de C.V. Mexico
- ------------------------------------------------------------------------------------------------------------------------
RUServicios, S.A Honduras
- ------------------------------------------------------------------------------------------------------------------------
Russell Co-Op LLC Guam
- ------------------------------------------------------------------------------------------------------------------------
Russell Corp. Australia Pty. Ltd. Australia
- ------------------------------------------------------------------------------------------------------------------------
Russell Corp. Bangladesh Limited Bangladesh
- ------------------------------------------------------------------------------------------------------------------------
Russell Corp. Canada Ltd. Canada
- ------------------------------------------------------------------------------------------------------------------------
Russell Corp. Far East Limited Hong Kong
- ------------------------------------------------------------------------------------------------------------------------
Russell CZ s.r.o. Czech Republic
- ------------------------------------------------------------------------------------------------------------------------
Russell do Brasil Ltda Brazil
- ------------------------------------------------------------------------------------------------------------------------
Russell Europe Limited United Kingdom
- ------------------------------------------------------------------------------------------------------------------------
Russell Foreign Sales, Ltd. Barbados
- ------------------------------------------------------------------------------------------------------------------------
Russell France, S.A.R.L. France
- ------------------------------------------------------------------------------------------------------------------------
Russell Germany, GmbH Germany
- ------------------------------------------------------------------------------------------------------------------------
Russell Holdings Europe B.V. Netherlands
- ------------------------------------------------------------------------------------------------------------------------
Russell Italy S.r.L. Italy
- ------------------------------------------------------------------------------------------------------------------------
Schedule 4.2-1
- ------------------------------------------------------------------------------------------------------------------------
Russell Japan KK Japan
- ------------------------------------------------------------------------------------------------------------------------
Russell Mexico, S.A. de C.V. Mexico
- ------------------------------------------------------------------------------------------------------------------------
Russell Spain, S.L. Spain
- ------------------------------------------------------------------------------------------------------------------------
Servicios Russell, S.A. de C.V. Mexico
- ------------------------------------------------------------------------------------------------------------------------
Schedule 4.2-2
EXHIBIT A
AMENDMENTS
ss.1 Section 1.1 of the Existing 1995 Note Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 1.1. Description of Notes. The Company will authorize
the issue and sale of $100,000,000 aggregate principal amount of its
Senior Notes (the "NOTES") to be dated the date of issue, to bear
interest from (and including) December 7, 1995 and thereafter at the
Applicable Rate, payable semiannually on May 31st and November 30th in
each year and at maturity (with the first such payment to be made on
May 31, 1996) and to bear interest on overdue principal (including any
overdue required or optional prepayment of principal) and premium, if
any, and (to the extent legally enforceable) on any overdue installment
of interest at the Overdue Rate after the date due, whether by
acceleration or otherwise, until paid, to be expressed to mature on
November 30, 2008, and to be substantially in the form attached hereto
as Exhibit A. Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months. If any amount of principal,
premium, if any, or interest on or in respect of any Note becomes due
and payable on any date which is not a Business Day, such amount shall
be payable on the next succeeding Business Day and the period of
extension shall be included in the computation of interest payable on
such Business Day. The Notes are not subject to prepayment or
redemption at the option of the Company prior to their expressed
maturity dates except on the terms and conditions and in the amounts
and with the premium, if any, set forth in ss. 2 of this Agreement. The
term "Notes" as used herein shall include each Note delivered pursuant
to this Agreement. You are hereafter sometimes referred to as the
"Purchaser." The terms which are capitalized herein shall have the
meanings set forth in ss. 8.1 or in Schedule 5 attached hereto unless
the context shall otherwise require."
ss.2 Section 1.1 of the Existing 1997 Note Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 1.1. Description of Notes. The Company will authorize
the issue and sale of $125,000,000 aggregate principal amount of its
Senior Notes (the "NOTES") to be dated the date of issue, to bear
interest from (and including) August 28, 1997 and thereafter at the
Applicable Rate, payable quarterly on November 28, February 28, May
Exhibit A-1
28 and August 28 in each year and at maturity (with the first such
payment to be made on November 28, 1997) and to bear interest on
overdue principal (including any overdue required or optional
prepayment of principal) and premium, if any, and (to the extent
legally enforceable) on any overdue installment of interest at the
Overdue Rate after the date due, whether by acceleration or otherwise,
until paid, to be expressed to mature on August 28, 2007, and to be
substantially in the form attached hereto as Exhibit A. Interest on the
Notes shall be computed on the basis of a 360-day year of twelve 30-day
months. If any amount of principal, premium, if any, or interest on or
in respect of any Note becomes due and payable on any date which is not
a Business Day, such amount shall be payable on the next succeeding
Business Day and the period of extension shall be included in the
computation of interest payable on such Business Day. The Notes are not
subject to prepayment or redemption at the option of the Company prior
to their expressed maturity dates except on the terms and conditions
and in the amounts and with the premium, if any, set forth in ss. 2 of
this Agreement. The term "Notes" as used herein shall include each Note
delivered pursuant to this Agreement. You are hereafter sometimes
referred to as the "Purchaser." The terms which are capitalized herein
shall have the meanings set forth in ss. 8.1 or in Schedule 5 attached
hereto unless the context shall otherwise require."
ss.3 The Existing 1995 Note Agreement is hereby amended by inserting a new
Section 2.8 to read as follows:
"SECTION 2.8. INTEREST RATE.
(a) Applicable Rate. Interest shall accrue on the unpaid
principal balance of the Notes at the rate (the "APPLICABLE RATE") of
(i) from (and including) December 7, 1995 through and including
September 30, 2001, 6.78% per annum; (ii) from (and including) October
1, 2001 through and including the day before the Amendment No. 9
Effective Date, 7.78% per annum; and (iii) from (and including) the
Amendment No. 9 Effective Date and at all times thereafter, 7.78% per
annum plus the increase, if any, indicated in ss. 2.8(b) or ss. 2.8(c)
as may be applicable.
(b) Interest Rate Adjustment When Notes are Not Rated.
If, on any day on or after July 1, 2002, (x) a rating of the Notes from
a Rating Agency is not in effect and (y) the Company has failed to
comply with either of the pricing conditions set forth in the next
succeeding sentence as of the first day of the then current fiscal
quarter (commencing with, for the avoidance of doubt, July 1, 2002),
Exhibit A-2
then the interest rate accruing on the Notes for such day shall be the
rate as set forth in ss. 2.8(a) plus (A) 1.25% per annum if it is the
Company's first failure to meet either of such pricing conditions or
(B) 2.50% per annum in all other circumstances. The pricing conditions
referred to in the preceding sentence are
(i) the Adjusted Debt/EBITDA Ratio as at the
last day of the period of four consecutive fiscal quarters
most recently ended must be equal to or less than the ratio
set forth in Schedule 2.8(b) that is applicable to the fiscal
quarter in which such last day falls; and
(ii) the Adjusted Debt Service Coverage Ratio for
the period of four consecutive fiscal quarters most recently
ended must be equal to or greater than 2.0 to 1.
(c) Interest Rate Adjustment When Notes Are Rated. On
each day on or after the Amendment No. 9 Effective Date on which a
rating of the Notes from a Rating Agency shall be in effect, the
interest rate accruing on the Notes for such day shall be the rate as
set forth in ss. 2.8(a) plus (i) 2.50% per annum if such rating is
below Investment Grade or (ii) 0% per annum if such rating is
Investment Grade. If, on any day, there are ratings in effect from more
than one Rating Agency, the lowest rating shall apply for purposes of
this ss. 2.8(c).
(d) Adjustment for Delayed Interest Rate Calculation. If,
on any interest payment date, any interest rate adjustment provided for
in Section 2.8(b) with respect to the then current fiscal quarter, or
any previous fiscal quarter (each, an "OPEN QUARTER"), cannot be
calculated due to the absence of the relevant financial information for
the Company, the amount payable on such interest payment date for the
interest period then ended shall be determined by reference to the rate
applicable to the Notes immediately following the most recent fiscal
quarter for which such information was available; provided, however,
that, at such time as such financial information is available with
respect to any Open Quarter, the amount due in respect of the interest
period that includes all or any part of such Open Quarter shall be
recomputed taking into account such financial information, and any
additional amount due, or any credit in respect of any overpayment
made, in respect of such Open Quarter (or any part thereof) shall be
paid, or applied to reduce the amount due, respectively, on the next
succeeding interest payment date or the redemption date of the Notes,
as the case may be.
Exhibit A-3
ss.4 The Existing 1997 Note Agreement is hereby amended by inserting a new
Section 2.8 to read as follows:
"SECTION 2.8. INTEREST RATE.
(a) Applicable Rate. Interest shall accrue on the unpaid
principal balance of the Notes at the rate (the "APPLICABLE RATE") of
(i) from (and including) August 28, 1997 through and including
September 30, 2001, 6.65% per annum; (ii) from (and including) October
1, 2001 through and including the day before the Amendment No. 9
Effective Date, 7.65% per annum; and (iii) from (and including) the
Amendment No. 9 Effective Date and at all times thereafter, 7.65% per
annum plus the increase indicated in ss. 2.8(b) or ss. 2.8(c) as may be
applicable.
(b) Interest Rate Adjustment When Notes are Not Rated.
If, on any day on or after July 1, 2002, (x) a rating of the Notes from
a Rating Agency is not in effect and (y) the Company has failed to
comply with either of the pricing conditions set forth in the next
succeeding sentence as of the first day of the then current fiscal
quarter (commencing with, for the avoidance of doubt, July 1, 2002),
then the interest rate accruing on the Notes for such day shall be the
rate as set forth in ss. 2.8(a) plus (A) 1.25% per annum if it is the
Company's first failure to meet either of such pricing conditions or
(B) 2.50% per annum in all other circumstances. The pricing conditions
referred to in the preceding sentence are
(i) the Adjusted Debt/EBITDA Ratio as at the
last day of the period of four consecutive fiscal quarters
most recently ended must be equal to or less than the ratio
set forth in Schedule 2.8(b) that is applicable to the fiscal
quarter in which such last day falls; and
(ii) the Adjusted Debt Service Coverage Ratio for
the period of four consecutive fiscal quarters most recently
ended must be equal to or greater than 2.0 to 1.
(c) Interest Rate Adjustment When Notes Are Rated. On
each day on or after the Amendment No. 9 Effective Date on which a
rating of the Notes from a Rating Agency shall be in effect, the
interest rate accruing on the Notes for such day shall be the rate as
set forth in ss. 2.8(a) plus (i) 2.50% per annum if such rating is
below Investment Grade or (ii) 0% per annum if such rating is
Investment Grade. If, on
Exhibit A-4
any day, there are ratings in effect from more than one Rating Agency,
the lowest rating shall apply for purposes of this ss. 2.8(c).
(d) Adjustment for Delayed Interest Rate Calculation. If,
on any interest payment date, any interest rate adjustment provided for
in Section 2.8(b) with respect to the then current fiscal quarter, or
any previous fiscal quarter (each, an "OPEN QUARTER"), cannot be
calculated due to the absence of the relevant financial information for
the Company, the amount payable on such interest payment date for the
interest period then ended shall be determined by reference to the rate
applicable to the Notes immediately following the most recent fiscal
quarter for which such information was available; provided, however,
that, at such time as such financial information is available with
respect to any Open Quarter, the amount due in respect of the interest
period that includes all or any part of such Open Quarter shall be
recomputed taking into account such financial information, and any
additional amount due, or any credit in respect of any overpayment
made, in respect of such Open Quarter (or any part thereof) shall be
paid, or applied to reduce the amount due, respectively, on the next
succeeding interest payment date.
ss.5 Section 5 of the Existing Note Agreements is hereby deleted and there
is substituted therefor Section 5.1 through Section 5.23, inclusive, as
stated on Schedule 5 attached hereto. Capitalized terms used in
Schedule 5 shall have the meanings ascribed to such terms in Schedule
5. For the avoidance of doubt, all covenants previously incorporated by
reference to the 1999 Credit Agreement are hereby deleted in their
entirety.
ss.6 The Existing Note Agreements are hereby amended by inserting a new
Section 5.24, a new Section 5.25, and a new Section 5.26 to read as
follows:
"5.24 RATING REQUIREMENT.
The Company shall not permit a rating from the Rating Agency
for the High-Yield Notes to become effective on any day unless on or
before such day, the Company, at its sole cost and expense, has
obtained a rating from a Rating Agency for the Notes."
"5.25 MOST FAVORED LENDER.
If at any time and from time to time after June 30, 2001, the
Company enters into, assumes or otherwise becomes bound or obligated
under, or agrees to the modification of, one or more covenants
Exhibit A-5
or events of default contained in any agreement or instrument of the
Company providing for the incurrence of Indebtedness equal to or
exceeding the principal amount of $10,000,000 (including, without
limitation, the 1999 Credit Agreement) (each, a "MATERIAL DEBT
DOCUMENT") that is more favorable to the lender or lenders under such
Material Debt Document than are the terms of this Agreement to the
holders of the Notes, this Agreement shall, without any further action
on the part of the Company or any of the holders of the Notes, be
deemed to be amended automatically to include each such more favorable
covenant, event of default, term or provision. No modification or
amendment of any Material Debt Document that results in any covenant,
event of default, or other material term or provision becoming less
restrictive on the Company shall be effective as a modification,
amendment or waiver under this Agreement. The Company further covenants
to promptly execute and deliver at its expense (including, without
limitation, the fees and expenses of counsel for the holders of the
Notes) an amendment to this Agreement in form and substance
satisfactory to the holders of the Notes to reflect such amendment,
provided that the execution and delivery of such amendment shall not be
a precondition to the effectiveness of such amendment as provided for
in this Section 5.25."
"5.26 COVENANT TO SECURE NOTES RATABLY.
(a) The Company covenants that if it or any Subsidiary
shall create or assume any Lien upon any of its property or assets,
whether now owned or hereafter acquired, other than Liens permitted by
the provisions of this Agreement (including, without limitation, Liens
created or assumed to secure Indebtedness under any Receivables
Purchase Document or any Permitted Sale Leaseback) (unless waived or
prior written consent to the creation or assumption thereof shall have
been obtained pursuant to Section 7.1), it will make or cause to be
made effective provision satisfactory in form and substance to
Prudential whereby the Notes will be secured by such Lien equally and
ratably with any and all other Indebtedness thereby secured so long as
any such other Indebtedness shall be so secured.
(b) The Company covenants that if any Subsidiary
guaranties any Indebtedness of the Company or any Subsidiary, it will
simultaneously cause such Subsidiary to guaranty the Notes equally and
ratably with all Indebtedness guarantied by such Subsidiary for so long
as such Indebtedness is guarantied and pursuant to documentation in
form and substance reasonably satisfactory to the holders of Notes.
Exhibit A-6
(c) The Company covenants that if it or any Person (other
than the Company or a Subsidiary) guaranties or provides collateral in
any manner for any Indebtedness of the Company or any Subsidiary, it
will simultaneously cause such Person to guaranty or provide such
collateral for the Notes equally and ratably with all Indebtedness
guarantied or secured by such Person for so long as such Indebtedness
is guarantied and pursuant to documentation in form and substance
reasonably satisfactory to the holders of Notes."
ss.7 Section 6.1(d) and Section 6.1(e) of each Existing Note Agreement are
hereby amended and restated to read in their entirety as follows:
"(d) Default shall occur in the observance or performance
of any covenant or agreement contained in Sections 5.1(e), 5.2(ii), 5.3
through 5.6, inclusive, Section 5.15, Section 5.17 or Sections 5.20
through 5.26, inclusive; or
(e) Default shall occur in the observance or performance
of any covenant or agreement contained in Sections 5.16 and 5.18 and
such default shall continue for more than ten days; or"
ss.8 Section 6.1 of each Existing Note Agreement is hereby amended by
deleting the "." at the end of clause (m) therein and substituting
therefor "; or" and adding the following new clause (n) to the end of
such Section 6.1 to read as follows:
"(n) event of default under (and as defined in) the 1999
Credit Agreement shall occur or exist."
ss.9 Section 8.1 of each Existing Note Agreement is hereby amended by
inserting the following definitions in their alphabetical order:
"Adjusted Consolidated EBITDA" shall mean Consolidated EBITDA
except that clause (i) thereof shall be deemed to provide as follows:
"(i) Consolidated EBIT determined without any deduction for a charge to
earnings attributable to doubtful accounts."
"Adjusted Debt/EBITDA Ratio" shall mean the Debt/EBITDA Ratio
except that clause (ii) thereof shall be deemed to provide as follows:
"(ii) Adjusted Consolidated EBITDA."
"Adjusted Debt Service Coverage Ratio" shall mean the Debt
Service Coverage Ratio except that the reference in clause (a) thereof
to "Consolidated EBITDA" shall be deemed to be a reference to "Adjusted
Consolidated EBITDA."
Exhibit A-7
"Amendment No. 9 Effective Date" shall mean January 31, 2002.
"Applicable Rate" shall have the meaning set forth in
ss.2.8(a).
"Investment Grade Rating" shall mean a rating of at least (a)
"BBB-" from S&P, (b) "Baa3" from Moody's or (c) "BBB-" from Fitch.
"Material Debt Document" shall have the meaning set forth in
ss.5.25.
"Open Quarter" shall have the meaning set forth in ss.2.8(d).
"Rating Agency" shall mean any of (a) Standard & Poor's
Corporation ("S&P"), (b) Moody's Investors Service ("Moody's") or (c)
Duff & Phelps Credit Rating Co./Fitch Investors Service, L.P. ("Fitch")
(including each of their respective successors and assigns).
ss.10 The definition of "Make-Whole Amount" in Section 8.1 of each Existing
Note Agreement is hereby amended and restated in its entirety to read
as follows:
"Make-Whole Amount" shall mean, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the
Called Principal of such Note over the sum of (i) such Called Principal
plus (ii) interest accrued thereon as of (including interest due on)
the Settlement Date with respect to such Called Principal. Solely with
respect to the calculation of interest in clause (ii) of this
definition of "Make-Whole Amount," interest shall accrue on the Notes
for all dates at the rate set forth in ss.2.8(a)(i) only. The
Make-Whole Amount shall in no event be less than zero."
ss.11 The definition of "1999 Credit Agreement" in Section 8.1 of each
Existing Note Agreement is hereby amended and restated in its entirety
to read as follows:
"1999 Credit Agreement" shall mean the $250,000,000 Amended
and Restated Credit Agreement dated as of January 31, 2002 among the
Company, Russell Europe, Wachovia Bank, N.A., as Administrative Agent,
and the various other parties listed thereon, as amended from time to
time (except as otherwise indicated herein)."
ss.12 Clause (b)(i) of the definition of "Overdue Rate" in Section 8.1 of
each Existing Note Agreement is hereby amended and restated in its
entirety to read as follows: "(i) 2% per annum plus the Applicable Rate
then in effect or."
Exhibit A-8
ss.13 The definition of "Russell Europe" in Section 8.1 of each Existing Note
Agreement is hereby amended and restated in its entirety to read as
follows:
"Russell Europe" shall mean Russell Europe Limited, organized
in the United Kingdom.
ss.14 The 1995 Senior Notes outstanding on the Amendment No. 9 Effective Date
are hereby, without any further action required on the part of any
other Person, deemed to be automatically amended to conform to and have
the terms provided in Exhibit A-1 attached hereto (except that the
principal amount and the payee of each Note shall remain unchanged).
Any 1995 Senior Note issued on or after the Amendment No. 9 Effective
Date shall be in the form of Exhibit A-1 attached hereto.
ss.15 The 1997 Senior Notes outstanding on the Amendment No. 9 Effective Date
are hereby, without any further action required on the part of any
other Person, deemed to be automatically amended to conform to and have
the terms provided in Exhibit A-2 attached hereto (except that the
principal amount and the payee of each Note shall remain unchanged).
Any 1997 Senior Note issued on or after the Amendment No. 9 Effective
Date shall be in the form of Exhibit A-2 attached hereto.
Exhibit A-9
Schedule 2.8(b)
Adjusted Debt/EBITDA Ratio
-------------------------------------------------------------------------
Fiscal Quarter Ending Ratio
-------------------------------------------------------------------------
2002 FQ2 3.00x
-------------------------------------------------------------------------
FQ3 3.00x
-------------------------------------------------------------------------
FQ4 2.50x
-------------------------------------------------------------------------
2003 FQ1 2.75x
-------------------------------------------------------------------------
FQ2 3.00x
-------------------------------------------------------------------------
FQ3 2.75x
-------------------------------------------------------------------------
FQ4 2.50x
-------------------------------------------------------------------------
2004 FQ1 2.75x
-------------------------------------------------------------------------
FQ2 3.00x
-------------------------------------------------------------------------
FQ3 2.75x
-------------------------------------------------------------------------
FQ4 2.50x
and thereafter
-------------------------------------------------------------------------
Exhibit A-1
SCHEDULE 5
SCHEDULE OF COVENANTS AND RELATED DEFINITIONS
Section 5. Company Covenants.
5A. Definitions. The terms as defined in this Section 5 shall, for
all purposes of this Agreement and any amendment hereto (except as herein
otherwise expressly provided or unless the context otherwise requires), have the
meanings set forth herein. Any capitalized terms used and not defined in this
Section 5 have the respective meanings ascribed thereto in the 1999 Credit
Agreement as in effect on the Amendment No. 9 Effective Date or in Section 8.1
of this Agreement.
"Administrative Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of
America, in its capacity as agent for the Banks, and its successors and
permitted assigns in such capacity.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls
the relevant Person (a "Controlling Person"), (ii) any Person (other
than the relevant Person or a Subsidiary of the relevant Person) which
is controlled by or is under common control with a Controlling Person,
or (iii) any Person (other than a Subsidiary of the relevant Person) of
which the relevant Person owns, directly or indirectly, 20% or more of
the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract
or otherwise.
"Amendment No. 9" means the Amendment No. 9 dated as of
January 31, 2002 between the Company and The Prudential Insurance
Company of America.
"Bank" means each bank listed on the signature pages to the
1999 Credit Agreement, and its successors and permitted assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or
(ii) one-half of one percent above the Federal Funds Rate. For purposes
of determining the Base Rate for any day, changes in the Prime Rate or
the Federal Funds Rate shall be effective on the date of each such
change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a
Base Rate Loan
Exhibit A-1
pursuant to the applicable Notice of Borrowing, Notice of Continuation
or Conversion, or pursuant to section 2.02(f), or Article VIII, of the
1999 Credit Agreement, as applicable.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Company (i) at the same time by all of the Banks, in the
case of a Syndicated Borrowing or (ii) by Wachovia, for Swing Loans. A
Borrowing is a "Syndicated Borrowing" if such Loans are made pursuant
to section 2.01(a) of the 1999 Credit Agreement or a "Swing Loan
Borrowing" if such Loan is made pursuant to section 2.01(b) of the 1999
Credit Agreement. A Borrowing is a "Euro-Dollar Borrowing" if such
Loans are Euro-Dollar Loans, or a "Base Rate Borrowing" if such Loans
are Base Rate Loans, or a "Transaction Rate Borrowing" if such Loans
are Transaction Rate Loans. A Borrowing is a "Dollar Borrowing" if such
Loans are Base Rate Loans or Euro-Dollar Loans. A Borrowing is a
"Foreign Currency Borrowing" if such Loans are Foreign Currency Loans.
"Capital Expenditures", for any period, with respect to any
Person, the aggregate of all expenditures by such Person for the
acquisition or leasing (pursuant to a capital or synthetic lease) of
fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period
and including incremental increases to existing capital leases and
synthetic leases during such period) which are required to be
capitalized under GAAP on a balance sheet of such Person.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation), and any and all warrants, rights or
options to purchase any of the foregoing.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C.ss. 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to
CERCLA.
"Chase" means JPMorgan Chase Bank (successor to The Chase
Manhattan Bank).
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
Exhibit A-2
"Collateral Agent" means Wachovia Bank, N.A., in its capacity
as collateral agent under the Intercreditor Agreement and the other
Security Documents, together with its successors in such capacity.
"Collateral Agent Fee Letter" means the Letter Agreement,
dated as of December 14, 2001, between the Company and the Collateral
Agent.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof,
and (ii) as to any Bank which enters into any Assignment and Acceptance
(whether as transferor Bank or as Assignee thereunder), the amount of
such Bank's Commitment after giving effect to such Assignment and
Acceptance, in each case as such amount may be reduced from time to
time pursuant to sections 2.09 and 2.10 of the 1999 Credit Agreement.
"Company" means (i) Russell Corporation, an Alabama (or, if
subsequently applicable, a Delaware) corporation, and its successors
and its permitted assigns and, (ii) only in connection with Foreign
Currency Borrowings and Foreign Currency Loans, means either or both,
as the context shall require, of the Company and Russell Europe, it
being understood and agreed that either the Company or Russell Europe,
or both of them (as to different Foreign Currency Borrowings), may
borrow Foreign Currency Loans within the limits set forth in section
2.01(a) of the 1999 Credit Agreement, but Russell Europe shall have
liability only for Foreign Currency Loans borrowed by it, and shall
have no liability on any Foreign Currency Loans, Syndicated Dollar
Loans or Swing Loans made to the Company.
"Compliance Certificate" has the meaning set forth in Section
5.1(c).
"Consolidated EBIT" means at any time the sum of the
following, determined on a consolidated basis for the Company and its
Consolidated Subsidiaries, at the end of each Fiscal Quarter, for the
Fiscal Quarter just ended and the 3 immediately preceding Fiscal
Quarters: (i) Consolidated Net Income; plus (ii) Consolidated Interest
Expense; plus (iii) taxes on income; plus (iv) all Restructuring
Charges.
"Consolidated EBITDA" means at any time the sum of the
following, determined on a consolidated basis for the Company and its
Consolidated Subsidiaries, at the end of each Fiscal Quarter, for the
Fiscal Quarter just ended and the 3 immediately preceding Fiscal
Quarters (and with respect to any acquisition which is made during such
four Fiscal Quarter Period, the Consolidated Subsidiary acquired in
such acquisition shall be included as if it had been a Consolidated
Subsidiary prior to the commencement of such four
Exhibit A-3
Fiscal Quarter Period): (i) Consolidated EBIT; plus (ii) depreciation;
plus (iii) amortization; plus (iv) other non-cash charges without
duplication of Restructuring Charges, minus (v) all cash payments
during such period relating to non-cash charges which were added back
in the determination of Consolidated EBITDA in any prior period.
"Consolidated Fixed Charges" means, for any period, the sum
(without duplication) of (a) Consolidated Interest Expense for such
period, (b) provision for cash income and franchise taxes made by the
Company or any of its Subsidiaries on a consolidated basis in respect
of such period, (c) scheduled payments made during such period on
account of principal of Debt of the Company or any of its Subsidiaries
and (d) Restricted Payments paid by the Company or any Consolidated
Subsidiary in cash during such period in respect of Capital Stock of
the Company other than Restricted Payments paid by a Consolidated
Subsidiary to the Company or another Consolidated Subsidiary.
"Consolidated Interest Expense" for any period means interest,
whether expensed or capitalized (but in the case of capitalization,
limited to the portion of capitalized interest allocable to such
period), in respect of Debt of the Company or any of its Consolidated
Subsidiaries outstanding during such period determined on a
consolidated basis in accordance with GAAP (provided that if any
Consolidated Subsidiary was acquired during such period, Consolidated
Interest Expense shall be adjusted to take into account the interest
expense of such Consolidated Subsidiary assuming for such purposes that
(a) such Consolidated Subsidiary was acquired prior to the commencement
of such period and (b) that the Debt of such acquired Consolidated
Subsidiary accrued interest as if such Debt was outstanding under the
1999 Credit Agreement).
"Consolidated Net Income" means, for any period, the Net
Income of the Company and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any
equity interests of the Company or any Consolidated Subsidiary in the
unremitted earnings or losses of any Person that is not a Consolidated
Subsidiary during such period.
"Consolidated Net Worth" means, at any time, the shareholders'
equity of the Company and its Consolidated Subsidiaries, as set forth
or reflected on the most recent consolidated balance sheet of the
Company and its Consolidated Subsidiaries prepared in accordance with
GAAP, but excluding any Redeemable Preferred Stock of the Company or
any of its Consolidated Subsidiaries. Shareholders' equity generally
would include, but not be limited to (i) the par or stated value of all
outstanding Capital Stock, (ii) capital surplus, and (iii) retained
earnings, and there would be deducted in
Exhibit A-4
the determination thereof, among other things, various deductions such
as (A) purchases of treasury stock, (B) valuation allowances, (C)
receivables due from an employee stock ownership plan, (D) employee
stock ownership plan debt guarantees, and (E) translation adjustments
for foreign currency transactions.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Company in its consolidated financial
statements as of such date.
"Consolidated Total Debt" means, at any date, without
duplication, the sum of (a) all Debt of the Company and its
Consolidated Subsidiaries at such date which would, in conformity with
GAAP, be included on the consolidated balance sheet of the Company and
its Consolidated Subsidiaries, plus, without duplication, all Debt of
Elcatex Guaranteed by the Company or any of its Consolidated
Subsidiaries.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Company, are treated as a
single employer under section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money (including,
without limitation the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP), (ii) all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person to pay
the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases, (v) all
obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is
a corporation), (vii) all obligations of such Person to reimburse any
bank or other Person in respect of amounts paid or to be paid under a
letter of credit or similar instrument (whether drawn or undrawn),
(viii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, (ix) all
net obligations of such Person with respect to interest rate protection
agreements, foreign currency exchange agreements or other hedging
arrangements (valued as the termination value thereof computed in
accordance with a method approved
Exhibit A-5
by the International Swap Dealers Association and agreed to by such
Person in the applicable hedging agreement, if any) and (x) all Debt of
others Guaranteed by such Person (including, without limitation, the
Debt of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer, other than
non-recourse Debt of such partnership or unincorporated joint venture).
"Debt/EBITDA Ratio" means at any time the ratio of (i)
Consolidated Total Debt to (ii) Consolidated EBITDA.
"Debt Service Coverage Ratio" for any period of four
consecutive Fiscal Quarters, the ratio of (a) Consolidated EBITDA for
such period to (b) the sum of (i) Consolidated Interest Expense for
such period and (ii) the aggregate amount of payments on account of
principal of Debt of the Company or any of its Subsidiaries scheduled
to be made during the four consecutive Fiscal Quarters immediately
succeeding such period.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
"Disposition", with respect to any property, means any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Dollar Equivalent" means the Dollar equivalent of the amount
of a Foreign Currency Loan, determined by the Administrative Agent on
the basis of its spot rate for the purchase of the appropriate Foreign
Currency with Dollars.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial Banks in Georgia are authorized
by law to close.
"Elcatex" means Elasticos Centroamericanos Textiles, S.A. de
C.V.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites
for conducting
Exhibit A-6
the business of the Company or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from any Environmental Requirements, whether
or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not
incorporated in a judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way
associated with any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement,
including without limitation any complaints, citations, demands or
requests from any Environmental Authority or from any other person or
entity for correction of any violation of any Environmental Requirement
or any investigations concerning any violation of any Environmental
Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with
any Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the
Company, any Subsidiary or the Properties under CERCLA or similar state
legislation and all federal, state and local laws, ordinances,
regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference
to any provision of ERISA shall also be deemed to be a reference to any
successor provision or provisions thereof.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered
Rate, and to be made as a Euro-Dollar Loan pursuant to the applicable
Notice of Borrowing or Notice of Continuation or Conversion.
Exhibit A-7
"Event of Default" has the meaning set forth in Section 6.1 of
this Agreement.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th 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 Domestic Business Day next succeeding such day,
provided that (i) if the day for which such rate is to be determined is
not a Domestic Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal
Funds Rate for such day shall be the average rate charged to the
Administrative Agent on such day on such transactions, as reasonably
determined by the Administrative Agent.
"Financing Documents" means this Agreement, the Notes, the
Security Documents, any other document evidencing, relating to or
securing the Notes delivered by or on behalf of the Company, and any
other document or instrument delivered by or on behalf of the Company
from time to time in connection with this Agreement, the Security
Documents or the Notes, as such documents and instruments may be
amended or supplemented from time to time.
"Fiscal Quarter" means any fiscal quarter of the Company.
"Fiscal Year" means any fiscal year of the Company.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (a) Consolidated EBITDA for such period less the aggregate amount
actually paid by the Company and its Consolidated Subsidiaries during
such period on account of Capital Expenditures to (b) Consolidated
Fixed Charges for such period.
"Fixed Rate Loans" means Euro-Dollar Loans, Foreign Currency
Loans or Transaction Rate Loans, or any one, or more, or all of them,
as the context shall require.
"Foreign Currency Borrowing" has the meaning set forth in the
definition of "Borrowing."
"Foreign Currency Loan" means a Loan to be made as a Foreign
Currency Loan pursuant to the applicable Notice of Borrowing, and such
Exhibit A-8
term shall include, individually and collectively, as the context shall
require, such Loans to the Company and to Russell Europe.
"Foreign Currency Loan Notes" means promissory notes of the
Company, substantially in the form of Exhibit A-4 to the 1999 Credit
Agreement, as to the Company, and Exhibit A-5 to the 1999 Credit
Agreement, as to Russell Europe, evidencing the obligation of the
Company to repay the Foreign Currency Loans, together with all
amendments, consolidations, modifications, renewals and supplements
thereto.
"FQ1," "FQ2," "FQ3," and "FQ4": when used with a numerical
year designation, means the first, second, third or fourth Fiscal
Quarters, respectively, of such Fiscal Year of the Company (e.g., FQ2
2001 means the second fiscal quarter of the Company's 2001 Fiscal Year,
which Fiscal Quarter ends July 1, 2001).
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 5.2,
are to be used in making the calculations for purposes of determining
compliance with the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to secure, purchase or pay,
or advance or supply funds for the purchase or payment of, such Debt or
other obligation, whether arising by virtue of partnership arrangements
(including, without limitation, arising solely by virtue of the status
of being a general partner in a partnership or participating as a joint
venturer in a joint venture), by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security,
to take-or-pay, or to maintain financial statement conditions or
otherwise, or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement made by the Company and certain of its
Subsidiaries in favor of Collateral Agent, dated as of December 14,
2001.
Exhibit A-9
"Guaranty" means the Guaranty Agreement, dated as of October
15, 1999, attached as Exhibit L to the 1999 Credit Agreement, executed
by the Company, unconditionally Guaranteeing payment of the Foreign
Currency Loans made to and the Foreign Currency Loan Note made by
Russell Europe.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and
Recovery Act of 1980, 42 U.S.C. ss. 6901 et seq. and its implementing
regulations and amendments, or in any applicable state or local law or
regulation, (b) "hazardous substance", "pollutant", or "contaminant" as
defined in CERCLA, or in any applicable state or local law or
regulation, (c) gasoline, or any other petroleum product or by-product,
including, crude oil or any fraction thereof, (d) toxic substances, as
defined in the Toxic Substances Control Act of 1976, or in any
applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide,
Fungicide, and Rodenticide Act of 1975, or in any applicable state or
local law or regulation, as each such Act, statute or regulation may be
amended from time to time.
"High-Yield Notes" shall have the meaning set forth in section
5.17(n).
"Intercompany Receivables Agreements" shall mean,
collectively, (i) the Amended and Restated Receivables Purchase and
Sale Agreement dated as of August 3, 2001 by and between Russell
Financial and the Company, (ii) the Amended and Restated Receivables
Purchase and Sale Agreement dated as of August 3, 2001 by and between
Russell Financial and Desoto Mills, Inc. and (iii) the Amended and
Restated Receivables Purchase and Sale Agreement dated as of August 3,
2001 by and between Russell Financial and Cross Creek Apparel, LLC, in
each case as originally executed or as such agreement may be from time
to time supplemented, amended, renewed or extended.
"Intercreditor Agreement" means the Intercreditor and Agency
Agreement among Collateral Agent and Secured Parties, dated as of
December 14, 2001.
"Investment" means any investment in any Person, whether by
means of (i) purchase or acquisition of all or substantially all of the
assets of such Person (or of a division or line of business of such
Person), including, without limitation, any Permitted Acquisition, (ii)
purchase or acquisition of obligations or securities of such Person,
including, without limitation, any Permitted Acquisition, (iii) capital
contribution to such Person, (iv) loan or advance to such Person, (v)
making of a time deposit with such Person, (vi) Guarantee or assumption
of any obligation of such Person or (vii) by any other means, but
excluding (A) trade advances in the ordinary course of the
Exhibit A-10
Company's business in accordance with historical practices existing on
October 15, 1999 and (B) special extensions or renewals of credit made
in accordance with the Company's credit policies to customers in
troubled financial condition in order to maximize the Company's
anticipated recovery or to protect a strategic source of supply or
market.
"Issuing Bank" means First Union National Bank, in its
capacity as issuer of any Letter of Credit.
"L/C Obligations" means, at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit that have not then been reimbursed pursuant to
section 2.15(e) of the 1999 Credit Agreement.
"Letters of Credit" means the letters of credit issued
pursuant to section 2.15 of the 1999 Credit Agreement.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest,
security title, preferential arrangement which has the practical effect
of constituting a security interest or encumbrance, or encumbrance or
servitude of any kind in respect of such asset to secure or assure
payment of a Debt or a Guarantee, whether by consensual agreement or by
operation of statute or other law, or by any agreement, contingent or
otherwise, to provide any of the foregoing. For the purposes of this
Agreement, the Company or any Subsidiary shall be deemed to own subject
to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement,
capital lease, synthetic lease or other title retention agreement
relating to such asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Dollar Loan, Foreign Currency Loan, Swing Loan or Transaction Rate
Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans, Syndicated
Dollar Loans, Foreign Currency Loans, Swing Loans, Transaction Rate
Loans, or any or all of them, as the context shall require.
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition, occurrence, cost or expenses of whatever nature
(including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding, but not including any event,
act, condition, occurrence, cost or expense arising out of or relating
to (i) the case styled
Exhibit A-11
Locke, et al. v. Russell Corporation, et al. or (ii) the Restructuring
Program or the Restructuring Charges), whether singly or in conjunction
with any other event or events, act or acts, condition or conditions,
occurrence, occurrences, costs or expenses, whether or not related,
that causes a material adverse change in, or a material adverse effect
upon, any of (a) the financial condition, operations, business,
properties or prospects of the Company and its Consolidated
Subsidiaries taken as a whole, (b) the rights and remedies of the
holders of Notes or the Collateral Agent against the Company under any
of the Financing Documents, or the ability of the Company to perform
its obligations under the Financing Documents to which it is a party,
as applicable, or (c) the legality, validity or enforceability of any
Financing Document against the Company.
"Moody's" means Moody's Investors Service.
"Mortgage" means a mortgage, deed of trust, deed to secure
debt, or other agreement executed by the Company or any of its
Subsidiaries to grant and convey to the Collateral Agent a Lien upon
any real property of the Company or any of its Subsidiaries.
"Multiemployer Plan" shall have the meaning set forth in
section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for
such period, as determined in accordance with GAAP.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means an acquisition of greater than
50% of the outstanding voting Capital Stock of a Person (or all or
substantially all of the assets of a Person or a division or line of
business of a Person) so long as: (i) the consideration paid by the
Company or Subsidiary is capital stock of the Company; (ii) the
proposed acquisition does not reduce Consolidated EBITDA during the
period of four Fiscal Quarters preceding the effective date of such
acquisition, determined as if such acquisition had been consummated
prior to the commencement of such period and using the actual results
of operations of such Person for such period; (iii) the acquisition
does not require a cash investment by the Company to support working
capital or increased projected Capital Expenditures and (iv) after
giving effect to such acquisition, the Company is in compliance with
the covenants set forth in Sections 5.20, 5.21 and 5.22 herein on a pro
forma basis.
Exhibit A-12
"Permitted Sale Leasebacks" shall have the meaning set forth
in Section 5.5(b).
"Person" means an individual, a corporation, a partnership, a
limited liability company, an unincorporated association, a trust or
any other entity or organization, including, but not limited to, a
government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under section 412 of the Code and is either (i) maintained by
a member of the Controlled Group for employees of any member of the
Controlled Group or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is
then making or accruing an obligation to make contributions or has
within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated, set
and published by Wachovia from time to time as an interest rate basis
for borrowings. The Prime Rate is but one of several interest rate
bases used by Wachovia. Wachovia lends at interest rates above and
below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Company or any Subsidiary, wherever
located.
"Receivables" means all rights of the Company or its
Subsidiaries to payment, whether constituting an account, chattel
paper, instrument, general intangible or otherwise, arising from the
sale of goods or services (including rights under bill and hold
arrangements) by the Company or its Subsidiaries (and including the
right to payment of any interest or finance charges and other
obligations with respect thereto) and the books and documents related
thereto.
"Receivables Purchase Agreement" means (i) the Accounts
Receivable Purchase Agreement dated as of January 31, 2002 by and among
Russell Financial, the Company and SunTrust Bank or (ii) any agreement
substantially identical to such Accounts Receivable Purchase Agreement,
but pursuant to which the Company and its relevant Subsidiaries factor
Receivables directly without first transferring them to Russell
Financial, together in each case with any bill of sale delivered in
connection therewith, in each case, as such agreements may be amended,
restated, modified or otherwise supplemented with the prior written
consent of the Required Holders (such consent not to be unreasonably
withheld or delayed).
Exhibit A-13
"Receivables Purchase Documents" means, collectively, the
Receivables Purchase Agreement, the Intercompany Receivables Purchase
Agreement and any and all other documents executed or delivered in
connection with or pursuant to the Receivables Purchase Agreement.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the maturity
date stated in the first paragraph of the Note either (i) mandatorily
redeemable (by sinking fund or similar payments or otherwise) or (ii)
redeemable at the option of the holder thereof.
"Reported Net Income" means, for any period, the Net Income of
the Company and its Consolidated Subsidiaries determined on a
consolidated basis.
"Required Holders" means at any time holders of Notes having
at least 51% of the aggregate principal amount of the Notes.
"Requirement of Law" means, as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Authority, in each
case applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Company's or any Subsidiary's Capital
Stock (except dividends payable in shares of its Capital Stock) or (ii)
any payment on account of the purchase, redemption, retirement or
acquisition by the Company or any of its Subsidiaries of (a) any shares
of the Company's or such Subsidiary's Capital Stock (except shares
acquired upon the conversion thereof into other shares of such Capital
Stock) or (b) any option, warrant or other right to acquire shares of
the Company's or such Subsidiary's Capital Stock.
"Restrictive Agreement" means an agreement (other than any of
the Financing Documents) that, if and for so long as the Company or any
Subsidiary is a party thereto, would prohibit, condition or restrict
the Company's or such Subsidiary's right to incur or repay Debt
(including any of the Loans); grant Liens upon any of the Company's or
such Subsidiary's Properties or other assets, whether real or personal;
declare or make Restricted Payments; amend, modify, extend or renew any
agreement evidencing Debt (including any of the Financing Documents);
or repay any
Exhibit A-14
Debt owed by the Company to any Subsidiary or by any Subsidiary to the
Company or another Subsidiary.
"Restructuring Charges" means any and all restructuring,
relocation and other unusual charges incurred in connection with the
Restructuring Program in Fiscal Years 1998 through 2001, not exceeding
$357,000,000 on a pre-tax basis or $233,000,000 on an after-tax basis.
"Restructuring Program" means the restructuring program and
related plans, including the establishment of a dual corporate
headquarters, publicly announced by the Company on July 22, 1998, as
amended, modified, extended or expanded through the Amendment No. 9
Effective Date.
"Revolving Extensions of Credit" as to any Bank at any time,
an amount equal to the sum of (a) the aggregate principal amount of all
Syndicated Dollar Loans and the Dollar Equivalent of the Foreign
Currency Loans held by such Bank then outstanding, (b) such Bank's
Revolving Percentage of the L/C Obligations then outstanding and (c)
such Bank's Revolving Percentage of the aggregate principal amount of
Swing Loans then outstanding.
"Revolving Percentage" as to any Bank at any time, the
percentage which such Bank's Commitment then constitutes of the Total
Commitments or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Bank's Syndicated Dollar Loans and Foreign Currency Loans then
outstanding constitutes of the aggregate principal amount of the
Syndicated Dollar Loans and Foreign Currency Loans then outstanding,
provided, that, in the event that the Syndicated Dollar Loans and
Foreign Currency Loans are paid in full prior to the reduction to zero
of the Total Revolving Extensions of Credit, the Revolving Percentages
shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Banks
on a comparable basis.
"Russell Financial" means Russell Financial Services, Inc., a
Delaware corporation.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies.
"Secured Debt" has the meaning given to such term in the
Intercreditor Agreement.
"Secured Parties" has the meaning given to such term in the
Intercreditor Agreement.
Exhibit A-15
"Security Documents" means the Intercreditor Agreement,
Guarantee and Collateral Agreement, the Collateral Agent Fee Letter and
all other security agreements, Mortgages, collateral assignments, and
other agreements securing, with the lien granted in favor of Collateral
Agent, all of the Secured Debt for the benefit of the Secured Parties.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Company.
"Subsidiary Guarantor" means each Subsidiary of the Company
that is party to the Guarantee and Collateral Agreement.
"Swing Loan" means a Loan made by Wachovia pursuant to section
2.01(b) of the 1999 Credit Agreement, which must be a Base Rate Loan or
a Transaction Rate Loan.
"Swing Loan Note" means the promissory note of the Company,
substantially in the form of Exhibit A-2 to the 1999 Credit Agreement,
evidencing the obligation of the Company to repay the Swing Loans,
together with all amendments, consolidations, modifications, renewals,
and supplements thereto.
"Syndicated Dollar Loan Notes" means the promissory notes of
the Company, substantially in the form of Exhibit A-1 to the 1999
Credit Agreement, evidencing the obligation of the Company to repay the
Syndicated Dollar Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Syndicated Dollar Loans" means Base Rate Loans or Euro-Dollar
Loans made pursuant to the terms and conditions set forth in section
2.01 of the 1999 Credit Agreement.
"Syndicated Loans" means Syndicated Dollar Loans and Foreign
Currency Loans.
"Taxes" has the meaning set forth in section 2.13(d) of the
1999 Credit Agreement.
"Total Commitments" at any time, the aggregate amount of the
Commitments then in effect.
Exhibit A-16
"Total Revolving Extensions of Credit" at any time, the
aggregate amount of the Revolving Extensions of Credit of the Banks
outstanding at such time.
"Transaction Rate Loan" means a Swing Loan to be made as a
Transaction Rate Loan pursuant to section 2.01(b) of the 1999 Credit
Agreement.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all
vested nonforfeitable benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of
a member of the Controlled Group to the PBGC or the Plan under Title IV
of ERISA.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly
owned by the Company.
5B. Covenants. The Company agrees that, so long as any
amount remains unpaid on any Note:
SECTION 5.1. INFORMATION. The Company will deliver to each of
the holders of Notes:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders' equity and cash flows
for such Fiscal Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all certified by Ernst & Young LLP or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Required Holders;
(b) as soon as available and in any event within 45 days
after the end of each of the first 3 Fiscal Quarters of each Fiscal Year,
commencing with the Fiscal Year beginning on December 31, 2001, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of the end of
such Fiscal Quarter and the related statement of income and statement of cash
flows for such Fiscal Quarter and for the portion of the Fiscal Year ended at
the end of such Fiscal Quarter,
Exhibit A-17
setting forth in each case in comparative form the figures for the corresponding
Fiscal Quarter and the corresponding portion of the previous Fiscal Year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, GAAP and consistency by the chief financial officer or the chief
accounting officer of the Company;
(c) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F to the 1999 Credit Agreement (as in
effect on the date hereof) (a "COMPLIANCE CERTIFICATE"), of the chief financial
officer or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.5, 5.15, 5.16, 5.17, and 5.20
through 5.23, inclusive, on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
annual financial statements referred to in paragraph (a) above, a statement of
the firm of independent public accountants which reported on such statements to
the effect that nothing has come to their attention to cause them to believe
that any Default existed on the date of such financial statements;
(e) (i) as soon as available, and in any event no later
than 45 days after the end of each Fiscal Year, the Company's "Annual Business
Plan" for the current Fiscal Year and for the next three Fiscal Years, each
prepared in a manner consistent with past practice and those previously provided
to the holders of Notes and (ii) as soon as available, and in any event no later
than 45 days after the end of each Fiscal Quarter, a quarterly update of the
"Annual Business Plan" for the current Fiscal Year, which, in each case (A)
shall be prepared in a manner consistent with past practice and in a form
consistent with that previously provided to the holders of Notes and (B)
accompanied by a certificate of the chief financial officer or chief accounting
officer of the Company stating that such plan is based on reasonable estimates,
information and assumptions and that such officer has no reason to believe that
such plan is incorrect or misleading in any material respect;
(f) simultaneously with the delivery of each set of
financial statements referred to in paragraph (b) above, an updated business
forecast, in form reasonably acceptable to the Required Holders (detailing
projected changes in financial position and projected income and a description
of the underlying assumptions applicable thereto) and accompanied by a
certificate of the chief financial officer or the chief accounting officer of
the Company stating that such business forecast is based on reasonable
estimates, information and assumptions
Exhibit A-18
and that such officer has no reason to believe that such business forecast is
incorrect or misleading in any material respect;
(g) within 5 Domestic Business Days after the Company
becomes aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting officer of the Company setting forth
the details thereof and the action which the Company is taking or proposes to
take with respect thereto;
(h) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(i) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Company shall have filed with the Securities and Exchange
Commission;
(j) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice; and
(k) from time to time such additional information
regarding the financial position or business of the Company and its Subsidiaries
as any holder of Notes may reasonably request.
SECTION 5.2. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Company will (i) keep, and cause each Subsidiary to keep, proper books of record
and account in which full, true and correct entries in conformity with GAAP
shall be made of all dealings and transactions in relation to its business and
activities; and (ii) permit, and cause each Subsidiary to permit,
representatives of any holder of Notes at such holder's expense prior to the
occurrence of a Default and at the Company's expense during the existence of a
Default to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Company agrees to cooperate
and assist in such visits and
Exhibit A-19
inspections, in each case upon reasonable notice and at such reasonable times
and as often as may reasonably be desired.
SECTION 5.3 MAINTENANCE OF EXISTENCE. The Company shall, and
shall cause each Subsidiary to, maintain its corporate existence (except that it
may become a Delaware corporation) and carry on its business in substantially
the same manner and in substantially the same fields as such business is now
carried on and maintained, except as permitted by Section 5.5.
SECTION 5.4 [RESERVED]
SECTION 5.5. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS (a)
The Company shall not, nor shall it permit any Subsidiary to, enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its property or business, except that (i) any Subsidiary
may be merged or consolidated with or into the Company (provided that the
Company shall be the continuing or surviving corporation) or with or into any
Subsidiary Guarantor other than Russell Europe (provided that the Subsidiary
Guarantor shall be the continuing or surviving corporation); (ii) any Subsidiary
may Dispose of any or all of its assets (x) to the Company or any Subsidiary
Guarantor other than Russell Europe (upon voluntary liquidation or otherwise) or
(y) pursuant to a Disposition permitted by paragraph (b) below; and (iii) any
Investment expressly permitted by Section 5.16 may be structured as a merger,
consolidation or amalgamation.
(b) The Company shall not, nor shall it permit any
Subsidiary to, Dispose of any of its property, whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's Capital Stock to any Person, except (i) the Disposition of obsolete
or worn out property in the ordinary course of business; (ii) the sale of
inventory in the ordinary course of business; (iii) the purchase by Russell
Financial, and the sale by the Company and certain of its Subsidiaries, of
Receivables pursuant to the Intercompany Receivables Agreements; (iii)
Dispositions permitted by clause (ii) of paragraph (a) above; (iv) the sale or
issuance of any Subsidiary's Capital Stock to the Company or any Subsidiary
Guarantor other than Russell Europe; (v) Dispositions of Accounts and Related
Assets (as those terms are defined in the Receivables Purchase Agreement) with
an aggregate fair market value not to exceed $50,000,000 pursuant to the
Receivables Purchase Agreement (provided that such Dispositions described in
this clause (v) shall only be permitted between July 1, 2002 and October 31,
2002 and only at any time during which the aggregate outstanding principal
amount of all Syndicated Dollar Loans and Swing Loans of the Banks and the
Dollar Equivalent of the Foreign Currency Loans of the Banks equals or exceeds
$225,000,000 (with the proceeds thereof having been used for the normal ongoing
business and working capital needs of the Company and its Subsidiaries)); (vi)
the sale and leaseback of
Exhibit A-20
the Company's distribution centers in Columbus, Georgia and Montgomery, Alabama
for sale prices of at least $10,000,000 and $14,000,000, respectively (provided
that such sale and leaseback transactions must close on or prior to May 31, 2002
(the "PERMITTED SALE LEASEBACKS")); and (vii) the sale of assets of the Company
and its Subsidiaries listed on Schedule 5.5 hereof which have been categorized
as "assets held for sale" by the Company; and (viii) the Disposition of other
property having a fair market value not to exceed $5,000,000 in the aggregate
for any Fiscal Year.
SECTION 5.6. [RESERVED]
SECTION 5.7. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The
Company will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings
diligently pursued. The Company will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become a
Lien against the property of the Company or any Subsidiary, except liabilities
being contested in good faith and against which reserves in conformity with GAAP
with respect thereto have been provided on the books of the Company or the
relevant Subsidiary.
SECTION 5.8. INSURANCE. The Company will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Company or
in such Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks (including on all its property, and public liability and
worker's compensation) as are usually insured against in the same general area
by companies of established repute engaged in the same or similar business
including, but not limited to, the insuring, at the Company's expense, of all
"assets held for sale" as identified on Schedule 5.5 hereof.
SECTION 5.9. CHANGE IN FISCAL YEAR. The Company will not
change its Fiscal Year, and will not permit any Consolidated Subsidiary to have
a fiscal year other than the Fiscal Year, without the prior written consent of
the Required Holders.
SECTION 5.10. MAINTENANCE OF PROPERTY. Except as permitted by
Section 5.5 or in connection with the Restructuring Program, the Company shall,
and shall cause each Subsidiary to, maintain all of its properties and assets
(including all "assets held for sale" as identified in Schedule 5.5) in good
condition, repair and working order, ordinary wear and tear excepted.
Exhibit A-21
SECTION 5.11. ENVIRONMENTAL NOTICES. The Company shall furnish
to all holders of Notes prompt written notice of all material Environmental
Liabilities of which the Company has notice, pending, threatened or anticipated
Environmental Proceedings of which the Company has notice, Environmental
Notices, Environmental Judgments and Orders, and Environmental Releases at, on,
in, under or in any way affecting the Properties or any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing.
SECTION 5.12. ENVIRONMENTAL MATTERS. The Company and its
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed, or otherwise
handled in the ordinary course of business in material compliance with all
applicable Environmental Requirements.
SECTION 5.13. ENVIRONMENTAL RELEASE. The Company agrees that
upon the occurrence of a material Environmental Release at or on any of the
Properties it will act immediately to investigate the extent of, and to take
appropriate remedial action to eliminate, such Environmental Release, whether or
not ordered or otherwise directed to do so by any Environmental Authority.
SECTION 5.14. TRANSACTIONS WITH AFFILIATES. Neither the
Company nor any of its Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Company or such Subsidiary (which
Affiliate may be Russell Europe but is not the Company or any other Wholly Owned
Subsidiary), except as permitted by law and in the ordinary course of business
and pursuant to reasonable terms which are no less favorable to Company or such
Subsidiary than would be obtained in a comparable arm's length transaction with
a Person which is not an Affiliate, and except for Investments permitted by
Section 5.16.
SECTION 5.15. RESTRICTED PAYMENTS. Neither the Company nor any
of its Subsidiaries shall declare or make any Restricted Payment, except that
(i) any Subsidiary may make Restricted Payments to the Company or any Subsidiary
Guarantor (other than Russell Europe) and (ii) so long as no Default or Event of
Default is continuing (before or after giving effect to such Restricted
Payment), the Company may (a) pay dividends with respect to the Capital Stock of
the Company in an amount during any Fiscal Quarter not exceeding $0.04 per share
of the Company's issued and outstanding common Capital Stock, (b) make payments
in the ordinary course of the Company's business in connection with an employee
stock option, bonus, stock purchase or other benefit plans of the Company on
account of (1) the repurchase of the Company's Capital Stock, (2) options,
warrants or other
Exhibit A-22
rights to acquire shares of the Company's Capital Stock, or (3) other awards
issued or granted under such plans or (c) otherwise repurchase the Company's
Capital Stock so long as at the time of such purchase (and after giving effect
to such purchase), the Fixed Charge Coverage Ratio for the period of four
consecutive Fiscal Quarters then most recently ended is greater than or equal to
1.40 to 1.00.
SECTION 5.16. INVESTMENTS. From and after the Amendment No. 9
Effective Date, neither the Company nor any of its Subsidiaries shall make
Investments in any Person except (i) loans or advances to officers, directors
and employees (1) for relocation expenses in connection with the Restructuring
Program and (2) for other purposes not exceeding $3,000,000 in the aggregate
principal amount outstanding at any time, in each case made in the ordinary
course of business in accordance with historical practices existing on the
Amendment No. 9 Effective Date; (ii) deposits required by government agencies or
public utilities (including pertaining to taxes and other similar charges),
(iii) Investments in direct obligations of the United States Government or any
agency thereof maturing within one year after the date of Investment, (iv)
Investments in certificates of deposit issued by a commercial bank whose credit
is satisfactory to the Administrative Agent and in certificates of deposit
issued by any banking subsidiary of Wachovia Corporation, AmSouth
Bancorporation, SunTrust Bank, Inc., Aliant National Corporation, Comerica Bank,
JP Morgan Chase Bank, First Union National Bank or any Person who succeeds to
all, or substantially all, of the assets or business of any thereof, (v)
Investments in commercial paper rated A1 or the equivalent thereof by S&P or P1
or the equivalent thereof by Moody's and in either case maturing within 270 days
after the date of acquisition, (vi) Investments in tender bonds the payment of
the principal of and interest on which is fully supported by a letter of credit
issued by a United States bank whose long-term certificates of deposit are rated
at least AA or the equivalent thereof by S&P and Aa or the equivalent thereof by
Moody's, (vii) Investments in variable rate demand bonds maturing or with
optional puts within one year or less from the date of acquisition thereof,
which, at the time of acquisition by the Company or Subsidiary, are rated not
lower than A or A-1 by S&P and not lower than A2 or P-1 by Moody's, (viii)
intercompany loans by the Company or any Subsidiary (other than Russell Europe)
to the Company or any Subsidiary Guarantor (other than Russell Europe), (ix)
Investments in Frontier Yarns LLC in an aggregate amount not to exceed
$9,900,000 (provided, that any cash Investments made in Frontier Yarns LLC shall
be limited to the proceeds of the Dispositions of the Company's Lafayette and
Gwaltney facilities and the equipment related thereto, (x) the transfer of
certain Receivables pursuant to the Intercompany Receivables Agreements and/or
the Receivables Purchase Agreement to the extent otherwise permitted by this
Agreement; (xi) Permitted Acquisitions; (xii) Guarantees otherwise permitted by
Section 5.17; and (xiii) other Investments (including joint venture and
partnership investments, minority interests and loans to strategic partners)
which do not exceed an aggregate amount of $5,000,000 in any Fiscal Year.
Exhibit A-23
SECTION 5.17. PERMITTED LIENS AND DEBT. The Company will not,
nor will it permit any Consolidated Subsidiary to, create, assume or suffer to
exist any Lien upon any Properties, or other assets, whether real or personal
property, now owned or hereafter acquired by the Company or such Subsidiary or
incur Debt, except as follows:
(a) any Lien or Debt that is in existence on the date
hereof and that is described on Schedule 5.17 and any refinancings, refundings,
renewals or extensions of such Debt (without increasing, or shortening the
maturity of, the principal amount thereof);
(b) any Lien existing on any specific fixed asset of any
Person at the time such Person becomes a Consolidated Subsidiary and not created
in contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring, constructing or improving such asset, provided that such Lien
attaches to such asset concurrently with or within 6 months after the
acquisition, completion, construction or improvement thereof;
(d) any Lien on any specific fixed asset of any Person
existing at the time such Person is merged or consolidated with or into the
Company or a Consolidated Subsidiary and not created in contemplation of such
event;
(e) any Lien existing on any specific fixed asset prior
to the acquisition thereof by the Company or a Consolidated Subsidiary and not
created in contemplation of such acquisition;
(f) any Lien securing Debt owing by any Subsidiary to the
Company or to any Wholly Owned Subsidiary;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by this Section,
provided that (i) such Debt is not secured by any additional assets, and (ii)
the amount of such Debt secured by any such Lien is not increased;
(h) any statutory Lien (other than a Lien arising under
ERISA or for past due taxes) incidental to the conduct of its business or the
ownership of its assets which (i) does not secure Debt, (ii) if such Lien
attaches to or otherwise affects any of the Collateral, no enforcement or
foreclosure proceedings in respect of such statutory Lien are commenced, and any
indebtedness secured by such Lien is not past due or payable (unless such
indebtedness is being actively contested in good faith and by appropriate
proceedings), and (iii) does not in the aggregate
Exhibit A-24
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business;
(i) any Lien on Margin Stock;
(j) any Debt incurred under the Financing Documents and
any other Debt secured under the Security Documents as permitted by the terms
thereof;
(k) any Lien created pursuant to the Security Documents;
(l) any Debts and Liens on the Receivables and general
intangibles related thereto pursuant to the Receivables Purchase Agreement (it
being understood however that it is intended by the parties hereto and thereto
that the sale of the Receivables pursuant to the Receivables Purchase Agreement
constitute a true sale of Receivables and not Debt);
(m) Debt of the Company to a Wholly Owned Subsidiary and
Debt of a Consolidated Subsidiary to the Company or another Wholly Owned
Subsidiary;
(n) Debt consisting of senior unsecured or senior
subordinated debt securities of the Company (the "HIGH-YIELD NOTES") in an
aggregate principal amount of not less than $150.0 million and containing terms
that are customary for the U.S. high-yield market issued by a company of
comparable credit quality as the Company provided that (i) the Company shall
determine the manner in which the High-Yield Notes shall be placed, (ii) the
bullet maturity of any High-Yield Notes shall not be earlier than six months
after the final maturity of any of the "Loans", as such term is defined in the
Intercreditor Agreement, and (iii) the application of proceeds of the High-Yield
Notes shall be as agreed between the Company and the Required Holders;
(o) Debt and Liens incurred pursuant to any Permitted
Sale Leaseback;
(p) Other Debt, including capital leases, in an aggregate
amount not to exceed $5,000,000 at any one time outstanding;
(q) Guarantees and other obligations of the Company and
its Subsidiaries under the Receivables Purchase Documents; and
(r) Debt in respect of commercial letters of credit
issued in connection with the purchase of inventory or other goods or services
by the Company and its Subsidiaries in the ordinary course of business;
provided, that the aggregate face amount of all such commercial letters of
credit shall not at any time exceed $10,000,000.
Exhibit A-25
SECTION 5.18. RESTRICTIVE AGREEMENTS. The Company shall not,
nor shall it permit any Subsidiary to, enter into or become a party to any
Restrictive Agreement; provided, however, that the foregoing shall not apply to
(i) Restrictive Agreements existing on the Amendment No. 9 Effective Date and
identified on Schedule 5.18 and any replacement or substitution thereof
otherwise permitted by this Agreement (but shall apply to any amendment,
modification or substitution expanding the scope of any restriction or condition
contained in any such Restrictive Agreement), (ii) restrictions or conditions
imposed by any Restrictive Agreement evidencing or governing secured Debt that
is permitted by this Agreement if such restrictions or conditions apply only to
the Properties securing such Debt, (iii) customary provisions in leases and
other contracts restricting the assignment thereof, (iv) the restrictions on the
granting of Liens contained in the indenture or indentures pursuant to which the
High Yield Notes are issued (provided that the provisions of such indenture or
indentures expressly permit the Liens granted pursuant to the Financing
Documents) and (v) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar agreements
entered into after the Amendment No. 9 Effective Date in the ordinary course of
business and otherwise permitted under this Agreement (which provisions apply
only to the property subject to such joint venture or similar agreement).
SECTION 5.19. [RESERVED]
SECTION 5.20. DEBT/EBITDA RATIO. The Company shall not, on any
date during any Fiscal Quarter set forth below, permit the Debt/EBITDA Ratio to
be greater than the ratio set forth below for such Fiscal Quarter:
Fiscal Quarter Ratio
-------------- -----
FQ 4 2001 3.25 to 1.00
FQ 1 2002 3.65 to 1.00
FQ 2 2002 3.75 to 1.00
FQ 3 2002 3.65 to 1.00
FQ 4 2002 2.65 to 1.00
FQ 1 2003 3.00 to 1.00
FQ 2 2003 3.00 to 1.00
Exhibit A-26
FQ 3 2003 3.00 to 1.00
FQ 4 2003 2.50 to 1.00
FQ 1 2004 2.75 to 1.00
FQ 2 2004 2.75 to 1.00
FQ 3 2004 2.75 to 1.00
FQ 4 2004 2.50 to 1.00
SECTION 5.21. MINIMUM CONSOLIDATED NET WORTH. The Company
shall not permit Consolidated Net Worth at any time to be less than the sum of
(i) $415,000,000, (ii) 50% of Reported Net Income for each Fiscal Quarter
(beginning with the Fiscal Quarter ending March 31, 2002) for which Reported Net
Income is positive, calculated quarterly at the end of each such Fiscal Quarter,
and (iii) 100% of the cumulative net proceeds of Capital Stock received during
any period after the Amendment No. 9 Effective Date, calculated quarterly at the
end of each Fiscal Quarter.
SECTION 5.22. DEBT SERVICE COVERAGE RATIO. The Company shall
not permit the Debt Service Coverage Ratio for any period of four consecutive
Fiscal Quarters ending with any Fiscal Quarter set forth below to be less than
the ratio set forth below opposite such Fiscal Quarter:
Fiscal Quarter Ratio
-------------- -----
FQ 4 2001 1.60 to 1.00
FQ 1 2002 1.60 to 1.00
FQ 2 2002 1.60 to 1.00
FQ 3 2002 1.90 to 1.00
FQ 4 2002 1.65 to 1.00
FQ 1 2003 1.70 to 1.00
FQ 2 2003 1.75 to 1.00
FQ 3 2003 1.75 to 1.00
FQ 4 2003 1.75 to 1.00
FQ 1 2004 1.75 to 1.00
Exhibit A-27
FQ 2 2004 1.75 to 1.00
FQ 3 2004 1.75 to 1.00
FQ 4 2004 1.75 to 1.00
SECTION 5.23. CAPITAL EXPENDITURES. Neither the Company nor
any of its Consolidated Subsidiaries shall make or commit to make any Capital
Expenditure, except Capital Expenditures of the Company and its Consolidated
Subsidiaries in the ordinary course of business during the 2002, 2003 and 2004
Fiscal Years not to exceed $40,000,000 in the aggregate during any such Fiscal
Year; provided, that (a) up to $10,000,000 of such amount for any such Fiscal
Year, if not so expended in the Fiscal Year for which it is permitted, may be
carried over for expenditure in the next succeeding Fiscal Year and (b) Capital
Expenditures made pursuant to this Section during any Fiscal Year shall be
deemed made, first, in respect of amounts permitted for such Fiscal Year as
provided above and, second, in respect of amounts carried over from the prior
Fiscal Year pursuant to clause (a) above.
Exhibit A-28
SCHEDULE 5.5
to Amendment No. 9
LOCATION/DESCRIPTION ACREAGE/SQ. FOOTAGE
- -----------------------------------------------------------------------------------------------------
MARIANNA DISTRIBUTION CENTER 259,271 sq. ft./21.5 Acres
MARIANNA, FL
FLOYD, VA FACILITY 50,904 sq. ft./11.51 Acres
ASHLAND, AL FACILITY 29,000 sq. ft./4.5 Acres
COOSA T&E FACILITY 50,350 sq. ft./17 Acres
ALEXANDER CITY, AL
LAFAYETTE, AL FACILITY 81,750 sq. ft./9.9 Acres
SYLACAUGA, AL FACILITY 137,485 sq. ft./12.5 Acres
COOSA #2 PLANT 157,697 sq. ft./20 Acres
ALEXANDER CITY, AL
COOSA #1 PLANT 126,574 sq. ft./ 23 Acres
ALEXANDER CITY, AL
PERSONNEL BUILDING 21,930 sq. ft./5 Acres
ALEXANDER CITY, AL
R&D BUILDING 42,464 sq. ft./5 Acres
ALEXANDER CITY, AL
MT. AIRY, NC 152,268 sq. ft./14.8 Acres
KNITTING PLANT
SURPLUS LAND 93 Acres
CARTHAGE, NC
MT. AIRY, NC 214,000 sq. ft./24.50 Acres
DISTRIBUTION CENTER
MT. AIRY, NC 74,748 sq ft
FRANKLIN STREET
FT PIERCE MALL 151,690 sq ft
FT. PIERCE, FL
FT WALTON MALL 44,125 sq ft
FT. WALTON, FL
ALEXANDER CITY, AL 14,060 sq ft
DOWNTOWN OFFICES
COMMANDER HOUSE
ALEXANDER CITY, AL
5 ACRE TRACT - ACROSS FROM RETAIL STORE
ALEXANDER CITY, AL
5.8 ACRE TRACT ON US280
ALEXANDER CITY, AL
10 ACRE TRACT BETWEEN AIRPORT RD. & US280
ALEXANDER CITY, AL
20 ACRE TRACT ON ELKAHATCHEE STREET
ALEXANDER CITY, AL
64 ACRE TRACT ACROSS FROM CENTRAL ALABAMA
COMMUNITY COLLEGE
ALEXANDER CITY, AL
12 ACRE TRACT AT INTERSECTION OF US280 & AL63
ALEXANDER CITY, AL
1.55 ACRE TRACT BETWEEN TECH CENTER & RADNEY SCHOOL
ALEXANDER CITY, AL
17.5 ACRE TRACT BETWEEN RADNEY SCHOOL & SPORTSPLEX
ALEXANDER CITY, AL
CITATION COMMERCIAL JET -1990 MODEL
1,700 ACRE RUSSELL POND TRACT
ALEXANDER CITY, AL
SCHEDULE 5.17
to Amendment No. 9
PERMITTED LIENS AND DEBTS
1. UCC Financing Statements and Tax Liens
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Pitney Bowes North Carolina 001490763 8/11/97 Specified Equipment
Apparel, Inc. Credit Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Associates North Carolina 19980038254 6/23/98 Specified Equipment
Apparel, Inc. Leasing, Inc. Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Telimagine, Inc. North Carolina 20000008199 1/24/00 Specified Equipment
Apparel, Inc. Secretary of
Assignee: Conseco State
Finance Vendor
Services
Corporation
Assigned to Wells
Fargo Financial
Leasing, Inc.
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Pitney Bowes North Carolina 20000035920 4/7/00 Specified Equipment
Apparel, Inc. Credit Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Western Carolina North Carolina 20000123088 12/20/00 Specified equipment and
Apparel, Inc. Forklift, Inc. Secretary of all attachments and parts
Assignee: State
The CIT
Group/Equipment
Financing, Inc.
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
1
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek OMNOVA Solutions, North Carolina 200105042981 7/26/01 Specified consigned goods
Apparel, LLC as Inc. as successor Secretary of
successor in in interest to State Amended 9/5/01
interest to Cross GenCorp
Creek Apparel, Performance
Inc. Chemicals
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Russell Financial North Carolina 20010508519L 8/7/01 Receivables, customer
Apparel, LLC Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Wachovia Bank, North Carolina 20010508526H 8/7/01 Accounts, Payment
Apparel, LLC N.A., as Agent Secretary of Intangibles, Supporting
State Obligations, rights under
Receivables Purchase and
Sale Agreement, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Associates Surry County, 98-001171 6/24/98 Specified Equipment
Apparel, Inc. Leasing, Inc. North Carolina
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Vanguard Supreme Surry County, 00-000893 4/12/00 Specified Equipment
Apparel, Inc. North Carolina
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Western Carolina Surry County, 00-002495 12/20/00 Specified
Apparel, Inc. Forklift, Inc. North Carolina Equipment
Assignee: The
CIT Group /
Equipment
Financing, Inc.
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Russell Financial Alabama B2001-30931FS 8/6/01 Receivables, customer
Apparel, LLC Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
2
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Wachovia Bank, Alabama B2001-30936FS 8/6/01 Accounts, Payment
Apparel, LLC N.A., as Agent Secretary of Intangibles, Supporting
State Obligations, rights under
Receivables Purchase and
Sale Agreement, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Russell Financial Cobb County, 033200109712 8/6/01 Receivables, customer
Apparel, LLC Services, Inc. Georgia agreements, goods,
security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Wachovia Bank, Cobb County, 033200109717 8/6/01 Accounts, Payment
Apparel, LLC N.A., as Agent Georgia Intangibles, Supporting
Obligations, rights under
Receivables Purchase and
Sale Agreement, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Wachovia Bank, Cobb County, 033200109718 8/6/01 Accounts, Payment
Holdings, Inc. N.A., as Agent Georgia Intangibles, Supporting
Obligations, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Cross Creek Wachovia Bank, Delaware 20011046510 8/28/01 Accounts, Payment
Holdings, Inc. N.A., as Agent Secretary of Intangibles, Supporting
State Obligations, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
DeSoto Mills, Inc. Russell Financial Alabama B2001-30930FS 8/6/01 Receivables, customer
Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
3
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
DeSoto Mills, Inc. Wachovia Bank, Alabama B2001-30935FS 8/6/01 Accounts, General
N.A., as Agent Secretary of Intangibles, rights under
State Receivables Purchase and
Sale Agreement, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
DeSoto Mills, Inc. Russell Financial Cobb County, 033200109713 8/6/01 Receivables, customer
Services, Inc. Georgia agreements, goods,
security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
DeSoto Mills, Inc. Wachovia Bank, Cobb County, 033200109716 8/6/01 Accounts, General
N.A., as Agent Georgia Intangibles, rights under
Receivables Purchase and
Sale Agreement, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Financial Wachovia Bank, Alabama B2001-30933FS 8/6/01 Accounts, General
Services, Inc. N.A., as Agent Secretary of Intangibles, Supporting
State Obligations, rights under
Receivables Purchase and
Sale Agreements, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Financial Wachovia Bank, Cobb County, 033200109715 8/6/01 Accounts, General
Services, Inc. N.A., as Agent Georgia Intangibles, Supporting
Obligations, rights under
Receivables Purchase and
Sale Agreements, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
4
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Financial Wachovia Bank, Tennessee 301-089644 8/6/01 Accounts, General
Services, Inc. N.A., as Agent Secretary of Intangibles, Supporting
State Obligations, rights under
Receivables Purchase and
Sale Agreements, Deposit
Accounts, money, books
and records, and proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Thompson Tractor Mississippi 01450813 7/17/00 Specified Equipment
Corporation - Co., Inc. Secretary of
Jerzees Mossy Oak State
Apparel Co.
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Mississippi 01473623 10/23/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Thompson Tractor Mississippi, 00-775 7/5/00 Specified Equipment
Corporation - Co., Inc. Clay County
Jerzees Mossy Oak
Apparel Co.
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Mississippi, 00-1289 10/23/00 Leased Equipment
Corporation Corporation Clay County
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Corp. Pitney Bowes Alabama B96-37418FS 9/9/96 Leased Equipment
Credit Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Thompson Tractor Alabama B96-47316FS 11/12/96 Specified Equipment
Corporation - DC Co., Inc. Secretary of
Mont. State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Thompson Tractor Alabama B96-50308FS 12/2/96 Specified Equipment
Corporation - DC Co., Inc. Secretary of
Mont. State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
5
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell SunTrust Bank, Alabama B97-24882FS 6/11/97 Fixtures and Equipment
Corporation and Atlanta Secretary of relating to industrial
Industrial State revenue bond
Development Board
of the City of
Ashland, Alabama
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Caterpillar Alabama B99-09151FS 3/3/99 Leased Equipment
Corporation Financial Secretary of
Services State
Corporation
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell First Alabama Alabama B99-12512FS 3/23/99 Fixtures, Rights and
Corporation Bank (now Regions Secretary of Revenues relating to bond
Bank) State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Caterpillar Alabama B1999-25870FS 6/17/99 Leased Equipment
Corporation Financial Secretary of
Services State
Corporation
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B1999-32512FS 8/4/99 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B1999-32513FS 8/4/99 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell EMC Corporation Alabama B1999-41255FS 10/4/99 Specified Equipment
Corporation Assignee: MLC Secretary of
Group, Inc. State
Assigned to
Wachovia Leasing
Corporation
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell IBM Credit Alabama B2000-00677FS 1/5/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Alabama B2000-03091FS 1/20/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
6
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Schlafhorst Inc. Alabama B2000-09605FS 3/7/00 Specified Equipment
Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Pitney Bowes Alabama B2000-09862FS 3/8/00 Leased Equipment
Corporation Credit Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell IBM Credit Alabama B2000-13880FS 4/6/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Computer Sales Alabama B2000-14937FS 4/13/00 Leased Equipment
Corporation International, Secretary of
Inc. State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Computer Sales Alabama B2000-18412FS 5/8/00 Leased Equipment
Corporation International, Secretary of
Inc. State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Computer Sales Alabama B2000-26726FS 6/30/00 Leased Equipment
Corporation International, Secretary of
Inc. State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Computer Sales Alabama B2000-28545FS 7/17/00 Leased Equipment
Corporation International, Secretary of
Inc. State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B2000-33671FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B2000-33672FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B2000-33673FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B2000-33674FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
7
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell D & G Dyes, Inc. Alabama B2000-33854FS 8/22/00 All inventory sold to
Corporation Secretary of Debtor by Secured Party
State and all proceeds and
products thereof
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Alabama B2000-41151FS 10/17/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Alabama B2000-41152FS 10/17/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Alabama B2000-46919FS 12/4/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Alabama B2000-46921FS 12/4/00 Leased Equipment
Corporation Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Alabama B2001-05109FS 2/6/01 Leased Equipment
Corporation Leasing - Secretary of
Technology Finance State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Alabama B2001-05212FS 2/7/01 Leased Equipment
Corporation Leasing - Secretary of
Technology Finance State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Alabama B2001-09815FS 3/13/01 Leased Equipment
Corporation Leasing Secretary of
Technology Finance State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Alabama B2001-29176FS 7/26/01 Specified Equipment
Corporation LLC Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Corp. Caterpillar Alabama B2001-29433FS 7/27/01 Specified Equipment
Financial Secretary of
Services State
Corporation
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Russell Financial Alabama B2001-30932FS 8/06/01 Receivables, customer
Corporation Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
8
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Business Credit Florida 970000055629 3/10/97 Specified Equipment
Corporation Leasing Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Copy Products Co. Florida 980000248264 11/6/98 Specified Equipment
Corporation Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell SunTrust Bank, Judge of 175760 4/30/97 Real property,
Corporation and Atlanta Probate, improvements, fixtures,
The Industrial Houston County, equipment and leasehold
Development Board Alabama
of the Town of
Columbia, Alabama
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Regions Bank as Judge of 328642 6/9/98 Buildings and
Corporation Trustee, formerly Probate, (continuation of (original improvements to leased
First Alabama Bank Montgomery original file filed 1/31/89, realty, fixtures, rights
County, Alabama number 294349) amendment under Lease Agreement,
filed 4/24/92, Project Revenues
first
continuation
filed 9/7/93
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Tubular Textile Judge of 65873 7/26/01 Specified Equipment
Corporation LLC Probate, Pike
County, Alabama
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Fulton County, 0602001002971 2/13/01 Specified Equipment
Corporation Leasing Georgia
Technology Finance
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Fulton County, 0602001002972 2/13/01 Specified Equipment
Corporation Leasing Georgia
Technology Finance
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Fulton County, 0602001002973 2/13/01 Specified Equipment
Corporation Leasing Georgia
Technology Finance
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Fulton County, 0602000005134 3/20/00 Specified Equipment
Corporation Corporation Georgia
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
9
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Fulton County, 0602000005074 3/20/00 Specified Equipment
Corporation Corporation Georgia
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Fulton County, 0602000001044 1/14/00 Specified Equipment
Corporation Corporation Georgia
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Leasing Fulton County, 0601999020368 10/20/99 Specified Equipment
Corporation Corporation Georgia
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Corp. City of Fulton County, GED Book 3161, 8/9/96 State Bridge Road;
Alpharetta, Georgia Page 270 property description:
Georgia 12-2970-0856-024
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Crown Credit Muscogee 10695004422 10/19/95 Specified Equipment
Corporation Company County, Georgia
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Crown Credit Muscogee 10695004423 10/19/95 Specified Equipment
Corporation Company County, Georgia
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Corp. Caterpillar Barrow County, 007-2001-008219 7/27/01 Leased Equipment
Financial Georgia
Services
Corporation
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Russell Financial Cobb County, 033200109714 8/6/01 Receivables, customer
Corporation Services, Inc. Georgia agreements, goods,
security for receivables,
books and records, and
proceeds
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Development Muscogee 106-95-005244 12/22/95 Documents, Goods,
Corporation Authority of County, Georgia Fixtures, Minerals,
Columbus, Georgia Proceeds
(Assignee: Continued on 12/15/00
Synovus Trust with continuation
Company) #106-00-003549
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Macpherson Muscogee 106-96-001012 3/8/96 This filing was
Corporation Meistergram, Inc. County, Georgia terminated on 4/24/96
with filing number
106-96-001656
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
10
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
The Russell First American Tennessee 961549999 11/27/96 Specified Equipment
Corporation National Bank Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell First American Tennessee 982009178 1/29/98 Specified Equipment
Corporation d/b/a National Bank Secretary of
Hubert Hodge State
Printing Co.
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
The Russell Imation Financing Tennessee 972064841 8/19/97 Leased Equipment
Corporation Services Secretary of
State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
Russell Fleet Capital Kansas 4572020 3/28/01 Leased Equipment
Corporation Leasing Secretary of
Technology Finance State
- ------------------- ------------------- ----------------- ------------------- ---------------- ---------------------------
2. Debt under the Notes issued by the Company (the "1992
Notes"), pursuant to, and as defined in, the Note Agreements
each dated as of December 1, 1992 (the "1992 Note
Agreements"), in the original aggregate principal amount of
$75,000,000 due August 31, 2002, the holders of which are
Teachers Insurance and Annuity Association of America,
AllState Life Insurance Company, Connecticut General Life
Insurance Company, and Prudential Insurance Company of
America ("Prudential").
3. Debt under the Financing Documents.
4. Debt under any agreements ("Cash Management Agreements")
between the Company or a Subsidiary, on the one hand, and any
Cash Management Services Provider (as defined in the
Guarantee and Collateral Agreement), on the other hand,
pursuant to which such Cash Management Services Provider
provides Cash Management Services (as defined in the
Guarantee and Collateral Agreement).
5. Debt under the foreign exchange forward rate agreements
provided to the Company by JPMorgan Chase Bank (formerly The
Chase Manhattan Bank) pursuant to the ISDA Master Agreement
and Schedules dated as of July 24, 2001 (the "Chase Swaps").
6. Debt under the Guarantee Agreement, dated as of August 4,
2000, by the Company to SunTrust Bank ("SunTrust") of loans
by SunTrust to Elasticos Centroamericanos Textiles, S.A. de
C.V. (the "Elcatex Guarantee").
11
7. Debt of Russell Europe Limited in an amount of up
to(pound)15.0 million owing to the Bank of Scotland, and the
guaranty of such Debt by Russell Corporation.
8. Debt under the Intercompany Receivables Agreements.
9. Debt under Letters of credit issued from time to time by
First Union National Bank for the account of one or more of
the Company and its Subsidiaries and for the benefit of a
supplier of the Company or a Subsidiary (the "First Union
Letters of Credit").
10. Intercompany Debt owing by RUServicios, Sociedad Anonima to
the Company, as evidenced by a promissory note in the
principal amount of US$5,000,000.
11. Letters of Credit issued prior to the date hereof by SunTrust
for the account of one or more of the Company and its
Subsidiaries and for the benefit of a supplier of the Company
or a Subsidiary (the "SunTrust Letters of Credit").
12. Amended and Restated Term Loan/Bankers' Acceptance Agreement
dated as of January 31, 2002, between the Company and
SunTrust (the "SunTrust Loan Agreement").
13. ISDA Master Agreement and Schedule dated as of June 19, 1995
(the "SunTrust/Russell Swap Agreement"), between Trust
Company Bank (now SunTrust) and the Company.
14. Guarantee of obligations of the Company pursuant to the
Guarantee and Collateral Agreement.
15. Debt under the Amended and Restated Credit Agreement dated as
of January 31, 2002 among the Company, Russell Europe
Limited, the Banks listed therein and Wachovia Bank, N.A. as
Administrative Agent ("the Wachovia Credit Agreement").
16. Liens created in favor of Wachovia Bank, N.A., as Collateral
Agent, pursuant to the Guarantee and Collateral Agreement and
various mortgages executed in connection therewith, and the
Debt secured thereby.
12
SCHEDULE 5.18
to Amendment No. 9
RESTRICTIVE AGREEMENTS
1. The Financing Documents
2. The 1992 Note Agreements
3. The Wachovia Credit Agreement
4. The Elcatex Guarantee
5. The Receivables Purchase Documents
6. The SunTrust Loan Agreement
7. The Guarantee and Collateral Agreement, together with the mortgages
and other agreements and documents relating thereto
8. Operating Agreement of Frontier Yarns LLC
9. Shareholders' Agreement dated September 30, 1999 Between Russell do
Brasil Ltda. and Companhia de Tecidos Norte de Minas - Coteminas
10. Marmot Mountain Ltd. Second Amended and Restated Stockholder Agreement
dated August 28, 2001
11. The agreements evidencing the Permitted Sale Leasebacks may limit the
ability of the Company to transfer or place liens upon the property
subject thereto
1
Exhibit A-1
[Form of 1995 Senior Note]
RUSSELL CORPORATION
Senior Note
Due November 30, 2008
No. R-_____ [DATE]
$__________ PPN:________
RUSSELL CORPORATION, an Alabama corporation (the "Company"), for value
received, hereby promises to pay to [_____________________] or registered
assigns on the thirtieth day of November, 2008 the principal amount of
[_____________________] DOLLARS ($[______]) and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid hereon at the Applicable Rate (as defined in
the Note Agreement (defined below)), payable semiannually on May 31st and
November 30th in each year and at maturity (with the first such payment to be
made on May 31, 1996). The Company agrees to pay interest on overdue principal
(including any overdue required or optional prepayment of principal) and
premium, if any, and (to the extent legally enforceable) on any overdue
installment of interest, at the Overdue Rate after the due date, whether by
acceleration or otherwise, until paid. "Overdue Rate" shall mean the lesser of
(a) the maximum rate permitted by applicable law and (b) the greater of (i) 2%
per annum plus the Applicable Rate or (ii) 2% per annum plus the rate which
Morgan Guaranty Trust Company of New York, New York, NY announces from time to
time as its prime lending rate, in each case as in effect from time to time.
Both the principal hereof and interest hereon are payable at the home
office of the registered holder of this Note in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts. If any amount of principal, premium, if
any, or interest on or in respect of this Note becomes due and payable on any
date which is not a Business Day, such amount shall be payable on the next
succeeding Business Day and the period of extension shall be included in the
computation of interest payable on such Business Day. "Business Day" means any
day other than a Saturday, Sunday or other day on which banks in Birmingham,
Alabama or New York, New York are required by law to close.
Exhibit A-1-1
This Note is one of the Senior Notes due November 30, 2008 (the
"Notes") of the Company in the aggregate principal amount of $100,000,000
issued under and pursuant to the terms and provisions of the Note Agreement,
dated as of December 7, 1995, as amended (the "Note Agreement"), entered into
by the Company with the original Purchaser therein referred to and this Note
and the holder hereof are entitled equally and ratably with the holders of all
other Notes outstanding under the Note Agreement to all the benefits provided
for thereby or referred to therein. Reference is hereby made to the Note
Agreement for a statement of such rights and benefits.
This Note and the other Notes outstanding under the Note Agreement may be
declared due prior to their expressed maturity dates and certain prepayments
are required to be made thereon, all in the events, on the terms and in the
manner and amounts as provided in the Note Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreement.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Note or its attorney duly authorized in
writing. Payment of or on account of principal, premium, if any, and interest
on this Note shall be made only to or upon the order in writing of the
registered holder.
THIS NOTE AND SAID NOTE AGREEMENT ARE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY.
RUSSELL CORPORATION
By:
----------------------------------------
Its:
---------------------------------------
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE LAWS OF ANY STATE AND MAY BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF ONLY IF REGISTERED OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AVAILABLE UNDER SUCH ACT AND APPLICABLE STATE LAW.
Exhibit A-1-2
EXHIBIT A-2
[Form of 1997 Senior Note]
RUSSELL CORPORATION
SENIOR NOTE
DUE AUGUST 28, 2007
No. R-____ [DATE]
$[______] PPN: [______]
RUSSELL CORPORATION, an Alabama corporation (the "COMPANY"), for value
received, hereby promises to pay to [_______________________] or registered
assigns on the twenty-eighth day of August, 2007 the principal amount of
[_______________________] DOLLARS ($[________]) and to pay interest (computed
on the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid hereon at the Applicable Rate (as defined in
the Note Agreement (defined below)), payable quarterly on November 28, February
28, May 28, and August 28 in each year and at maturity (with the first such
payment to be made on November 28, 1997). The Company agrees to pay interest on
overdue principal (including any overdue required or optional prepayment of
principal) and premium, if any, and (to the extent legally enforceable) on any
overdue installment of interest, at the Overdue Rate after the due date,
whether by acceleration or otherwise, until paid. "Overdue Rate" shall mean the
lesser of (a) the maximum rate permitted by applicable law and (b) the greater
of (i) 2% per annum plus the Applicable Rate or (ii) 2% per annum plus the rate
which Morgan Guaranty Trust Company of New York, New York, NY announces from
time to time as its prime lending rate, in each case as in effect from time to
time.
Both the principal hereof and interest hereon are payable at the home
office of the registered holder of this Note in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts. If any amount of principal, premium, if
any, or interest on or in respect of this Note becomes due and payable on any
date which is not a Business Day, such amount shall be payable on the next
succeeding Business Day and the period of extension shall be included in the
computation of interest payable on such Business Day. "Business Day" means any
day other than a Saturday, Sunday or other day on which banks in Birmingham,
Alabama or New York, New York are required by law to close.
Exhibit A-1-1
This Note is one of the Senior Notes Due August 28, 2007 (the "NOTES")
of the Company in the aggregate principal amount of $125,000,000 issued under
and pursuant to the terms and provisions of the Note Agreement, dated as of
August 28, 1997, as amended (the "NOTE AGREEMENT"), entered into by the Company
with the original Purchaser therein referred to and this Note and the holder
hereof are entitled equally and ratably with the holders of all other Notes
outstanding under the Note Agreement to all the benefits provided for thereby
or referred to therein. Reference is hereby made to the Note Agreement for a
statement of such rights and benefits.
This Note and the other Notes outstanding under the Note Agreement may
be declared due prior to their expressed maturity dates and certain prepayments
are required to be made thereon, all in the events, on the terms and in the
manner and amounts as provided in the Note Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreement.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Note or its attorney duly authorized in
writing. Payment of or on account of principal, premium, if any, and interest
on this Note shall be made only to or upon the order in writing of the
registered holder.
THIS NOTE AND SAID NOTE AGREEMENT ARE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY.
RUSSELL CORPORATION
BY:
----------------------------------------
TITLE:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE LAWS OF ANY STATE AND MAY BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF ONLY IF REGISTERED OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AVAILABLE UNDER SUCH ACT AND APPLICABLE STATE LAW.
Exhibit A-1-2
Exhibit 5.2
[Collateral Documents]
Exhibit 5.3-1
Exhibit 5.7
[Wachovia Amendment]
Exhibit 5.8-1
Exhibit 5.8
[SunTrust Amendment]
Exhibit 5.10-1