EXHIBIT (4e)
$250,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
JANUARY 31, 2002
AMONG
RUSSELL CORPORATION,
RUSSELL EUROPE LIMITED,
THE BANKS LISTED HEREIN
WACHOVIA BANK, N.A.,
AS ADMINISTRATIVE AGENT
SUNTRUST BANK (FORMERLY SUNTRUST BANK, ATLANTA),
AS SYNDICATION AGENT
FIRST UNION NATIONAL BANK,
AS DOCUMENTATION AGENT
AND
WACHOVIA SECURITIES, INC.,
AS LEAD ARRANGER
TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE I. DEFINITIONS............................................................................................ 1
Section 1.01. Definitions................................................................... 1
Section 1.02. Accounting Terms and Determinations.......................................... 19
Section 1.03. References................................................................... 19
Section 1.04. Use of Defined Terms......................................................... 19
Section 1.05. Terminology.................................................................. 19
Section 1.06. Other Definitional Provisions................................................ 19
ARTICLE II. THE CREDITS.......................................................................................... 20
Section 2.01. Commitments to Lend Syndicated Loans and Swing Loans......................... 20
Section 2.02. Method of Borrowing Syndicated Loans and Swing Loans......................... 23
Section 2.03. [Reserved]................................................................... 25
Section 2.04. Continuation and Conversion Elections........................................ 25
Section 2.05. Notes........................................................................ 26
Section 2.06. Maturity of Loans............................................................ 26
Section 2.07. Interest Rates............................................................... 26
Section 2.08. Fees......................................................................... 28
Section 2.09. Optional Termination or Reduction of Commitments............................. 29
Section 2.10. Mandatory Reduction and Termination of Commitments........................... 29
Section 2.11. Optional Prepayments......................................................... 29
Section 2.12. Mandatory Prepayments........................................................ 29
Section 2.13. General Provisions as to Payments............................................ 30
Section 2.14. Computation of Interest and Fees............................................. 32
i
Section 2.15. Letters of Credit............................................................ 32
ARTICLE III. CONDITIONS TO BORROWINGS............................................................................ 35
Section 3.01. Conditions to Effectiveness of the Amended and Restated Credit Agreement..... 35
Section 3.02. Conditions to All Extensions of Credit....................................... 36
ARTICLE IV. REPRESENTATIONS AND WARRANTIES....................................................................... 37
Section 4.01. Corporate Existence and Power................................................ 37
Section 4.02. Corporate and Governmental Authorization; No Contravention................... 37
Section 4.03. Binding Effect............................................................... 37
Section 4.04. Financial Information........................................................ 37
Section 4.05. No Litigation................................................................ 38
Section 4.06. Compliance with ERISA........................................................ 38
Section 4.07. Compliance with Laws; Payment of Taxes....................................... 38
Section 4.08. Subsidiaries................................................................. 38
Section 4.09. Investment Company Act....................................................... 39
Section 4.10. Public Utility Holding Company Act........................................... 39
Section 4.11. Ownership of Property; Liens................................................. 39
Section 4.12. No Default................................................................... 39
Section 4.13. Full Disclosure.............................................................. 39
Section 4.14. Environmental Matters........................................................ 39
Section 4.15. Capital Stock................................................................ 40
Section 4.16. Margin Stock................................................................. 40
Section 4.17. Insolvency................................................................... 40
Section 4.18. Insurance.................................................................... 41
ARTICLE V. COVENANTS............................................................................................. 41
Section 5.01. Information.................................................................. 41
ii
Section 5.02. Inspection of Property, Books and Records.................................... 43
Section 5.03. Maintenance of Existence..................................................... 43
Section 5.04. [Reserved]................................................................... 43
Section 5.05. Consolidations, Mergers and Sales of Assets.................................. 43
Section 5.06. Use of Proceeds.............................................................. 44
Section 5.07. Compliance with Laws; Payment of Taxes....................................... 44
Section 5.08. Insurance.................................................................... 44
Section 5.09. Change in Fiscal Year........................................................ 45
Section 5.10. Maintenance of Property...................................................... 45
Section 5.11. Environmental Notices........................................................ 45
Section 5.12. Environmental Matters........................................................ 45
Section 5.13. Environmental Release........................................................ 45
Section 5.14. Transactions with Affiliates................................................. 45
Section 5.15. Restricted Payments.......................................................... 45
Section 5.16. Investments.................................................................. 46
Section 5.17. Permitted Liens and Debt..................................................... 46
Section 5.18. Restrictive Agreements....................................................... 48
Section 5.19. [Reserved]................................................................... 49
Section 5.20. Debt/EBITDA Ratio............................................................ 49
Section 5.21. Minimum Consolidated Net Worth............................................... 49
Section 5.22. Debt Service Coverage Ratio.................................................. 49
Section 5.23. Capital Expenditures......................................................... 50
ARTICLE VI. DEFAULTS............................................................................................. 51
Section 6.01. Events of Default............................................................ 51
Section 6.02. Notice of Default............................................................ 54
iii
Section 6.03. Cash Collateral.............................................................. 54
ARTICLE VII. THE ADMINISTRATIVE AGENT............................................................................ 54
Section 7.01. Appointment; Powers and Immunities........................................... 54
Section 7.02. Reliance by Administrative Agent............................................. 55
Section 7.03. Defaults..................................................................... 55
Section 7.04. Rights of Administrative Agent and its Affiliates as a Bank.................. 55
Section 7.05. Indemnification.............................................................. 56
Section 7.06. Consequential Damages........................................................ 56
Section 7.07. Payee of Note Treated as Owner............................................... 56
Section 7.08. Nonreliance on Administrative Agent and Other Banks.......................... 57
Section 7.09. Failure to Act............................................................... 57
Section 7.10. Resignation or Removal of Administrative Agent............................... 57
ARTICLE VIII. CHANGE IN CIRCUMSTANCES; COMPENSATION.............................................................. 58
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair..................... 58
Section 8.02. Illegality................................................................... 58
Section 8.03. Increased Cost and Reduced Return............................................ 59
Section 8.04. Base Rate Loans or Other Fixed Rate Loans Substituted for
Affected Fixed Rate Loans................................................... 60
Section 8.05. Compensation................................................................. 61
Section 8.06. Failure to Pay in Foreign Currency........................................... 61
Section 8.07. Judgment Currency............................................................ 62
Section 8.08. Replacement of Banks......................................................... 62
ARTICLE IX. MISCELLANEOUS........................................................................................ 62
Section 9.01. Notices...................................................................... 62
Section 9.02. No Waivers................................................................... 63
Section 9.03. Expenses; Documentary Taxes.................................................. 63
iv
Section 9.04. Indemnification.............................................................. 63
Section 9.05. Setoff; Sharing of Setoffs................................................... 64
Section 9.06. Amendments and Waivers....................................................... 65
Section 9.07. No Margin Stock Collateral................................................... 66
Section 9.08. Successors and Assigns....................................................... 66
Section 9.09. Confidentiality.............................................................. 68
Section 9.10. Representation by Banks...................................................... 68
Section 9.11. Obligations Several.......................................................... 68
Section 9.12. Georgia Law.................................................................. 68
Section 9.13. Severability................................................................. 68
Section 9.14. Interest..................................................................... 68
Section 9.15. Interpretation............................................................... 69
Section 9.16. Waiver of Jury Trial; Consent to Jurisdiction................................ 69
Section 9.17. Counterparts................................................................. 70
Section 9.18. Source of Funds -- ERISA..................................................... 70
Section 9.19. European Economic and Monetary Union......................................... 70
Section 9.20. [Reserved]................................................................... 72
Section 9.21. Existing Credit Agreement; Effectiveness of Amendment and Restatement........ 72
v
EXHIBIT A-1 Form of Syndicated Dollar Loan Note
EXHIBIT A-2 Form of Swing Loan Note
EXHIBIT A-3 [Reserved]
EXHIBIT A-4 Form of Foreign Currency Loan Note for Russell Corporation
EXHIBIT A-5 Form of Foreign Currency Loan Note for Russell Europe Limited
EXHIBIT B [Reserved]
EXHIBIT C [Reserved]
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E-1 Form of Notice of Borrowing
EXHIBIT E-2 Form of Notice of Continuation or Conversion
EXHIBIT F Form of Compliance Certificate
EXHIBIT G [Reserved]
EXHIBIT H [Reserved]
EXHIBIT I [Reserved]
EXHIBIT J [Reserved]
EXHIBIT K [Reserved]
EXHIBIT L Form of Guaranty
EXHIBIT M Form of Consent and Confirmation
Schedule 4.08 Subsidiaries
Schedule 5.05 Assets Held for Sale
Schedule 5.17 Permitted Liens and Debts
Schedule 5.18 Restrictive Agreements
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 31,
2002, among RUSSELL CORPORATION, RUSSELL EUROPE LIMITED, the BANKS listed on the
signature pages hereof, WACHOVIA BANK, N.A., as Administrative Agent, SUNTRUST
BANK (formerly SunTrust Bank, Atlanta), as Syndication Agent and FIRST UNION
NATIONAL BANK, as Documentation Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, to provide financing for Russell Corporation and
Russell Europe Limited, Russell Corporation, Russell Europe Limited, the Banks
named therein, Wachovia Bank, N.A., as administrative agent, SunTrust Bank,
Atlanta, as syndication agent and First Union National Bank, as documentation
agent entered into a Credit Agreement, dated as of October 15, 1999, as amended
by the First Amendment, dated as of July 15, 2001, the Second Amendment, dated
as of September 17, 2001 and the Third Amendment, dated as of December 14, 2001
and as further amended by that certain Letter Agreement dated October 15, 2001
entered into by, among others, the parties hereto (the "Existing Credit
Agreement");
WHEREAS, the parties to the Existing Credit Agreement have
agreed to amend and restate the Existing Credit Agreement in its entirety;
NOW, THEREFORE, in consideration of the premises and
agreements hereinafter set forth, the parties hereto hereby agree to amend and
restate the Existing Credit Agreement in its entirety as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms as defined in this
Section 1.01 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:
"Adjusted IBOR Rate" has the meaning set forth in Section
2.07(d).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"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 hereunder, 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.
"Aggregate Commitments" means at any time the aggregate amount
of the Commitments of all Banks at such time.
"Agreement" means this Amended and Restated Credit Agreement,
together with all amendments and supplements hereto.
"Application" means an application, in such form as the
Issuing Bank may specify from time to time, requesting the Issuing Bank to open
a Letter of Credit.
"Applicable Margin" has the meaning set forth in Section
2.07(a).
"Arranger's Letter Agreement" means that certain letter
agreement, dated as of August 27, 1999, between the Borrower and Wachovia
Securities, Inc., as Lead Arranger, relating to the structure of the Loans, and
certain fees from time to time payable by the Borrower to Wachovia Securities,
Inc., as arranger, and to the Administrative Agent, together with all amendments
and supplements thereto.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Available Commitment" as to any Bank at any time, an amount
equal to the excess, if any, of (a) such Bank's Commitment then in effect over
(b) such Bank's Revolving Extensions of Credit then outstanding.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, 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.
2
"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 pursuant to the applicable Notice of Borrowing, Notice of Continuation or
Conversion, Section 2.02(f), or Article VIII, as applicable.
"Borrower" 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 Russell Corporation and Russell Europe Limited, it being understood and
agreed that either Russell Corporation or Russell Europe Limited, 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), but Russell Europe Limited
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 Russell Corporation.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (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) or a
"Swing Loan Borrowing" if such Loan is made pursuant to Section 2.01(b). 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.
"Bridge Letter Agreement" means that certain Letter Agreement,
dated July 3, 2001, among Russell, Wachovia and Wachovia Securities, Inc.
"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.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Chase" means JPMorgan Chase Bank (successor to The Chase
Manhattan Bank).
3
"Clean-Down Amount" shall have the meaning set forth in clause
(iii) of Section 2.01(a).
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"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 Borrower 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.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated EBIT" means at any time the sum of the
following, determined on a consolidated basis for the Borrower 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; and (iv) all Restructuring Charges.
"Consolidated EBITDA" means at any time the sum of the
following, determined on a consolidated basis for the Borrower 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
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 Borrower 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 Borrower
or any of its Subsidiaries and (d) Restricted Payments paid by the Borrower or
any Consolidated Subsidiary in cash during such period in respect of Capital
Stock of the Borrower other than Restricted Payments paid by a Consolidated
Subsidiary to the Borrower or another Consolidated Subsidiary.
4
"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 Borrower 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 hereunder).
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any equity
interests of the Borrower 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 Borrower and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower 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, (iii) retained earnings, and (iv) 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 Borrower 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 Borrower and its Consolidated
Subsidiaries at such date which would, in conformity with GAAP, be included on
the consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, plus, without duplication, all Debt of Elcatex Guaranteed by the
Borrower 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 Borrower, 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,
5
(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 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
Borrower 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.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"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.
6
"Domestic Subsidiary" means a Subsidiary organized under the
laws of a state of the United States of America or the District of Columbia.
"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 the business of the Borrower 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 Borrower,
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" has the meaning set forth in Section 9.19.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
7
"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.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"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.
"First Amendment Date" means July 25, 2001.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"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 Borrower and its Consolidated Subsidiaries during such period on
account of Capital Expenditures to (b) Consolidated Fixed Charges for such
period.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing, a
Foreign Currency Borrowing or a Transaction Rate Borrowing, or any one, or more,
or all of them, as the context shall require.
"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 Currencies" means, individually and collectively, as
the context shall require, each of the following, if offered and subject to
availability, and subject to the provisions of Section 9.19 (i) euros, (ii)
British pounds sterling and (iii) at the option of the Banks, any other currency
which is freely transferable and convertible into Dollars; provided, however,
that no such other currency under this clause (iii) shall be included as a
Foreign Currency hereunder, or included in a Notice of Borrowing, unless (x) a
Borrower has first submitted a request to the Administrative Agent and the Banks
that it be so included, and (y) the Administrative Agent and each of the Banks,
in their sole discretion, have agreed to such request.
8
"Foreign Currency Borrowing" has the meaning set forth in the
definition of "Borrowing."
"Foreign Currency Business Day" shall mean any Domestic
Business Day, excluding one on which trading is not carried on by and between
banks in deposits of the applicable Foreign Currency in the applicable interbank
market for such Foreign Currency.
"Foreign Currency Loan" means a Loan to be made as a Foreign
Currency Loan pursuant to the applicable Notice of Borrowing, and such term
shall include, individually and collectively, as the context shall require, such
Loans to Russell Corporation and to Russell Europe Limited.
"Foreign Currency Loan Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A-4, as to Russell Corporation,
and Exhibit A-5, as to Russell Europe Limited, evidencing the obligation of the
Borrower to repay the Foreign Currency Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic Subsidiary.
"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 Borrower (e.g., FQ2 2001 means the
second fiscal quarter of the Borrower'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 1.02, 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 Russell and certain of its Subsidiaries in favor of
Collateral Agent, dated as of December 14, 2001.
9
"Guaranty" means the Guaranty Agreement, dated as of October
15, 1999, attached as Exhibit L, executed by Russell Corporation,
unconditionally Guaranteeing payment of the Foreign Currency Loans made to and
the Foreign Currency Loan Note made by Russell Europe Limited.
"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).
"IBOR" has the meaning set forth in Section 2.07(d).
"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
Borrower, (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.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing and Foreign Currency Borrowing, the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the first,
second, third or sixth month thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c) below)
which would otherwise end on a day which is not a Euro-Dollar Business
Day or Foreign Currency Business Day shall be extended to the next
succeeding Euro-Dollar Business Day or Foreign Currency Business Day,
as the case may be, unless such Euro-Dollar Business Day or Foreign
Currency Business Day, as the case may be, falls in another calendar
month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day or Foreign Currency Business Day, as
the case may be;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
10
appropriate subsequent calendar month) shall, subject to paragraph (c)
below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date; and
(2) with respect to each Transaction Rate Borrowing, any
period up to 14 days mutually agreeable to the Borrower and Wachovia which ends
on or prior to the Termination Date.
"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 (x) trade advances in the ordinary course of the Borrower's
business in accordance with historical practices existing on the Original
Closing Date and (y) special extensions or renewals of credit made in accordance
with the Borrower's credit policies to customers in troubled financial condition
in order to maximize the Borrower'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 Commitment" equals $7,500,000.
"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).
"L/C Participants" means the collective reference to all the
Banks other than the Issuing Bank.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent. Each Bank may designate a Lending Office for Syndicated
Dollar Loans and a different Lending Office for Foreign Currency Loans, and the
term "Lending Office" shall in such case mean either such Lending Office, as the
context shall require.
"Letter Agreements" means the collective reference to the
Arranger's Letter Agreement and the Bridge Letter Agreement.
"Letters of Credit" has the meaning set forth in Section
2.15(a).
11
"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 Borrower 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.
"Loan Documents" means this Agreement, the Security Documents,
the Notes, the Letter Agreements, the Guaranty, any other document evidencing,
relating to or securing the Loans delivered by or on behalf of the Borrower, and
any other document or instrument delivered by or on behalf of the Borrower from
time to time in connection with this Agreement, the Security Documents, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"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
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 Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent, the Collateral Agent, or the Banks against the Borrower
under any of the Loan Documents, or the ability of the Borrower to perform its
obligations under the Loan Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability of any Loan Document against the
Borrower.
"Moody's" means Moody's Investor Services, Inc.
"Mortgage" means a mortgage, deed of trust, deed to secure
debt, or other agreement executed by the Borrower or any of its Subsidiaries to
grant and convey to the Collateral Agent a Lien upon any real property of the
Borrower or any of its Subsidiaries.
12
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"National Currency Unit" has the meaning set forth in Section
9.19.
"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.
"Notes" means each of the Syndicated Dollar Loan Notes or
Swing Loan Notes, or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02(a).
"Notice of Continuation or Conversion" has the meaning set
forth in Section 2.04.
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Original Closing Date" means October 15, 1999.
"Participant" has the meaning set forth in Section 9.08(b).
"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 Borrower or Subsidiary is capital
stock of the Borrower; (ii) the proposed acquisition does not, on a pro forma
basis, reduce the Consolidated EBITDA of the Borrower during the four Fiscal
Quarters preceding the effective date of such acquisition; (iii) the acquisition
does not require a cash investment by the Borrower to support working capital or
increased projected Capital Expenditures and (iv) after giving effect to such
acquisition, the Borrower is in compliance with the covenants set forth in
Sections 5.20, 5.21 and 5.22 herein on a pro forma basis.
"Permitted Sale Leasebacks" shall have the meaning set forth
in Section 5.05(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
13
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 Borrower or any Subsidiary, wherever located.
"Quarterly Payment Date" means each March 31, June 30,
September 30 and December 31, or, if any such day is not a Domestic Business
Day, the next succeeding Domestic Business Day.
"Receivables" means all rights of the Borrower 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 Borrower or
its Subsidiary (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 Borrower and SunTrust Bank or (ii) any agreement substantially
identical to such Accounts Receivable Purchase Agreement, but pursuant to which
the Borrower 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 Administrative Agent (such consent not to be unreasonably
withheld or delayed).
"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 Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Fixed Rate Borrowing, if and to the extent that the
proceeds thereof are used for the purpose of paying such maturing Loan or Loan
being converted, excluding any difference between the amount of such maturing
Loan or Loan being converted and any greater amount being borrowed on such day
and actually either being made available to the Borrower pursuant to Section
2.02(c) or remitted to the Administrative Agent as provided in Section 2.13, in
each case as contemplated in Section 2.02(d).
14
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reimbursement Obligation" the obligation of the Borrower to
reimburse the Issuing Bank pursuant to Section 2.15(e) for amounts drawn under
Letters of Credit.
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Bank.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments are no longer
in effect, Banks holding at least 51% of the aggregate outstanding principal
amount of the Revolving Extensions of Credit.
"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.
"Restatement Effective Date" means January 31, 2002.
"Restrictive Agreement" means an agreement (other than any of
the Loan Documents) that, if and for so long as the Borrower or any Subsidiary
is a party thereto, would prohibit, condition or restrict the Borrower's or such
Subsidiary's right to incur or repay Debt (including any of the Loans); grant
Liens upon any of the Borrower'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 Loan
Documents); or repay any Debt owed by the Borrower to any Subsidiary or by any
Subsidiary to the Borrower or another Subsidiary.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's or any Subsidiary's Capital Stock
(except dividends payable in shares of such Capital Stock) or (ii) any payment
on account of the purchase, redemption, retirement or acquisition by the
Borrower or any of its Subsidiaries of (a) any shares of the Borrower's or such
Subsidiary's Capital Stock (except shares acquired upon the conversion thereof
into other shares
15
of such Capital Stock) or (b) any option, warrant or other right to acquire
shares of the Borrower's or such Subsidiary's Capital Stock.
"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 Borrower on July 22, 1998, as amended, modified,
extended or expanded through the Restatement Effective Date.
"Reuters Screen" shall mean, when used in connection with any
designated page and the London Interbank Offered Rate or IBOR, the display page
so designated on the Reuters Monitor Money Rates Service (or such other page as
may replace that page on that service for the purpose of displaying rates
comparable to the London Interbank Offered Rate or IBOR).
"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 Family" means, collectively,
(a) the lineal descendants (including Persons who have
been legally adopted by a lineal descendant) and the spouses of lineal
descendants of Benjamin Russell (founder of the Borrower); and
(b) the Benjamin and Roberta Russell Foundation,
Incorporated; and
(c) any trust directly or indirectly controlled by, or
for the benefit of, one or more of such Persons described in clause (a)
above or directly or indirectly controlled by any corporation or
partnership described in clause (d) below; and
16
(d) any corporation or partnership in which voting
control as to such entity is held, directly or indirectly, by any one
or more of the Persons described in clause (a) above or by such trusts
described in clause (c) above; and
(e) any Person acting as the executor or administrator of
the estate or other legal representative of any Person described in
clause (a) above.
"Russell Financial" means Russell Financial Services, Inc., a
Delaware corporation.
"S&P" means Standard & Poor's Rating Group, a division of
McGraw-Hill, Inc.
"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.
"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.
"Stated Term" means the term of the Commitments, which
commenced on the Original Closing Date and shall end on October 15, 2004, unless
sooner terminated as provided herein.
"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 Borrower.
"Subsidiary Guarantor" means each Subsidiary of the Borrower
that is party to the Guarantee and Collateral Agreement.
"Swing Loan" means a Loan made by Wachovia pursuant to Section
2.01(b), which must be a Base Rate Loan or a Transaction Rate Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower 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 Borrower, substantially in the form of Exhibit A-1, evidencing the
obligation of the Borrower to repay the Syndicated Dollar Loans, together with
all amendments, consolidations, modifications, renewals and supplements thereto.
17
"Syndicated Dollar Loans" means Base Rate Loans or Euro-Dollar
Loans made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loans" means Syndicated Dollar Loans and Foreign
Currency Loans.
"Taxes" has the meaning set forth in Section 2.13(d).
"Telerate" means, when used in connection with any designated
page and IBOR, the display page so designated on the Telerate service screen (or
such other page as may replace that page on that service for the purpose of
displaying rates comparable to IBOR).
"Termination Date" means whichever is the earlier to occur of
(i) the last day of the Stated Term, (ii) the date that the Commitments are
terminated pursuant to Section 6.01 following the occurrence of an Event of
Default or (iii) the date that the Borrower terminates the Commitments entirely
pursuant to Section 2.09.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Total Commitments" at any time, the aggregate amount of the
Commitments then in effect.
"Total Revolving Extensions of Credit" at any time, the
aggregate amount of the Revolving Extensions of Credit of the Banks outstanding
at such time.
"Transferee" has the meaning set forth in Section 9.08(d).
"Transaction Rate" has the meaning set forth in Section
2.01(b)(ii).
"Transaction Rate Loan" means a Swing Loan to be made as a
Transaction Rate Loan pursuant to Section 2.01(b).
"Transaction Rate Request" has the meaning set forth in
Section 2.01(b)(ii).
"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.
"Unused Commitment" means at any date with respect to any
Bank, an amount equal to its Commitment less its Revolving Extensions of Credit.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
18
"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 Borrower.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 5.01 hereof, shall mean the financial statements referred to in
Section 4.04).
SECTION 1.03. REFERENCES. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
SECTION 1.04. USE OF DEFINED TERMS. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
SECTION 1.05. TERMINOLOGY. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.06. OTHER DEFINITIONAL PROVISIONS. As used herein
and in the other Loan Documents, and any certificate or other document made or
delivered pursuant hereto or thereto, (i) the words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation",
(ii) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights, and (iii) references to agreements or
instruments shall, unless otherwise specified, be deemed to refer to such
agreements or instruments, as the case may be, as amended, supplemented,
restated or otherwise modified from time to time.
19
ARTICLE II.
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS AND SWING
LOANS.
(a) Each Bank (except as to Aliant Bank, with respect to
Foreign Currency Loans, as set forth in the last two sentences of this paragraph
(a)) severally agrees, on the terms and conditions set forth herein, to make
Syndicated Loans (which may be, at the option of the Borrower and subject to the
terms and conditions hereof, Foreign Currency Loans or Syndicated Dollar Loans,
and Syndicated Dollar Loans may be Base Rate Loans or Euro-Dollar Loans) to the
Borrower (and with respect to Foreign Currency Loans, such Borrower may be
either Russell Corporation or Russell Europe Limited) from time to time before
the Termination Date; provided that,
(i) immediately after each such
Syndicated Loan is made, the sum of (i) the
aggregate outstanding principal amount of the
Syndicated Dollar Loans and the Dollar Equivalent of
the Foreign Currency Loans by such Bank and (ii)
such Bank's Revolving Percentage of the L/C
Obligations and Swing Loans then outstanding shall
not exceed the amount of its Commitment,
(ii) (x) the sum of (a) the aggregate
outstanding principal amount of all Syndicated
Dollar Loans and Swing Loans of all Banks, (b) the
Dollar Equivalent of the Foreign Currency Loans of
all Banks and (c) the L/C Obligations shall not
exceed the lesser of (1) the aggregate amount of the
Commitments and (2) the limitations, if any, on
borrowings contained in any agreement or other
instrument binding upon the Borrower or any of its
Subsidiaries; and (y) the Dollar Equivalent of the
aggregate outstanding principal amount of all
Foreign Currency Loans shall not exceed $25,000,000,
and
(iii) the sum of (i) the aggregate
outstanding principal amount of all Syndicated
Dollar Loans and Swing Loans of all Banks, (ii) the
Dollar Equivalent of the Foreign Currency Loans of
all Banks and (iii) the L/C Obligations shall not
exceed $185,000,000 (the "Clean-Down Amount") at any
time during the period from December 1 through
February 28 of each year.
The Dollar Equivalent of each Foreign Currency Loan on the date each Foreign
Currency Loan is disbursed pursuant hereto shall be deemed to be the amount of
such Foreign Currency Loan outstanding for the purpose of calculating the
aggregate outstanding principal amount of the Foreign Currency Loans for
purposes of clause (ii) of Section 2.01(a); provided, however, that if at the
time of receipt of any Notice of Borrowing, the sum of (a) the aggregate
outstanding principal amount of all Syndicated Dollar Loans and Swing Loans of
all Banks, (b) the Dollar Equivalent of the aggregate principal amount of the
Foreign Currency Loans of all Banks and (c) the L/C Obligations is equal to or
greater than 75% of the aggregate amount of all of the
20
Commitments, then the Dollar Equivalent of each Foreign Currency Loan shall be
calculated as of such date, rather than as of the date such Foreign Currency
Loans were disbursed, and in the event that, as a result of such calculation,
the sum of (a) the aggregate outstanding principal amount of all Syndicated
Dollar Loans and Swing Loans of all Banks, (b) the Dollar Equivalent of the
aggregate principal amount of the Foreign Currency Loans of all Banks and (c)
the L/C Obligations exceeds the aggregate amount of all of the Commitments, then
(1) no additional Borrowings shall be permitted until the payment required by
clause (2) below has been made and (2) the Foreign Currency Loans shall be
subject to mandatory repayment pursuant to the provisions of Section 2.12(b).
Each Syndicated Borrowing under this Section shall be in an aggregate principal
amount of (x) $1,000,000 or any larger integral multiple of $500,000, in the
case of Base Rate Loans, and (y) $5,000,000 (or the Dollar Equivalent thereof in
any Foreign Currency) or any larger integral multiple of $1,000,000 (or the
Dollar Equivalent thereof in any Foreign Currency) in the case of Fixed Rate
Loans (except in any case that any such Syndicated Borrowing may be in the
aggregate amount of the Unused Commitments) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.11, prepay Syndicated Loans and reborrow under
this Section at any time before the Termination Date. Notwithstanding the
foregoing, if there shall occur on or prior to the date of any Foreign Currency
Loan any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
opinion of the Administrative Agent make it impracticable to make such Foreign
Currency Loan, then the Administrative Agent shall forthwith give notice thereof
to the Borrower and the Banks, and such Foreign Currency Loan shall be made on
such date as Base Rate Loans, unless the Borrower notifies the Administrative
Agent at least two Domestic Business Days before such date that it elects not to
borrow on such date. Aliant Bank has indicated that it is unable to fund Foreign
Currency Loans, and Wachovia and Aliant Bank have agreed that: (i) Wachovia will
fund Aliant Bank's ratable share of any Foreign Currency Loan (such share of any
Foreign Currency Loan made by Wachovia being the "Aliant Foreign Currency
Share"), and Wachovia's Foreign Currency Loan Note shall also evidence such
Foreign Currency Loans made on behalf of Aliant Bank; (ii) immediately upon the
making of any Foreign Currency Loan by Wachovia, Aliant Bank shall be deemed to
have irrevocably and unconditionally purchased and received from Wachovia,
without recourse or warranty, a 100% undivided risk participation in such
Foreign Currency Loan in the amount of the Aliant Foreign Currency Share; (iii)
in the event that the applicable Borrower shall not have repaid any Foreign
Currency Loan made by Wachovia as and when it becomes due pursuant hereto,
Wachovia shall promptly notify Aliant Bank of such failure, and Aliant Bank
shall promptly and unconditionally pay to Wachovia, in Dollars and in same day
funds, the Dollar Equivalent of the Aliant Foreign Currency Share of such
Foreign Currency Loan, and (iv) if such payment is not promptly made, hold
Wachovia harmless and indemnify it as to any loss incurred by Wachovia arising
from any change in the value of Dollars in relation to such Foreign Currency
between the date such payment became due and the date of payment thereof, and
pay to Wachovia interest for such period on the amount of such payment at the
Base Rate for the first 3 days and thereafter at the Default Rate.
(b) Swing Loans.
(i) In addition to the foregoing, Wachovia shall
from time to time, upon the request of the Borrower, if the
applicable conditions precedent in Article
21
III have been satisfied, make Swing Loans to the Borrower in
an aggregate principal amount at any time outstanding not
exceeding $15,000,000; provided that, immediately after such
Swing Loan is made, the conditions set forth in clause (ii) of
Section 2.01(a) shall have been satisfied. Each Swing Loan
Borrowing under this Section 2.01(b) shall be in an aggregate
principal amount of $100,000 or any larger multiple of
$25,000. Within the foregoing limits, the Borrower may borrow
under this Section 2.01(b), prepay and reborrow under this
Section 2.01(b) at any time before the Termination Date. All
Swing Loans shall be made as Base Rate Loans or, subject to
the provisions of clause (ii) below, Transaction Rate Loans.
(ii) Swing Loans may be Transaction Rate Loans,
if the Administrative Agent shall have determined that such
Transaction Rate Loan, including the principal amount thereof,
the Interest Period and the Transaction Rate applicable
thereto, has been expressly agreed to by the Borrower and
Wachovia (such agreement may be obtained by telephone,
confirmed promptly to the Administrative Agent in writing)
pursuant to the following procedures. If the Borrower desires
a Transaction Rate Loan, (a) the Borrower shall provide
Wachovia, with a copy to the Administrative Agent, with notice
of a request (a "Transaction Rate Request") for a quote for a
Transaction Rate Borrowing prior to 1:00 p.m. (Atlanta,
Georgia time) on the date (which shall be a Domestic Business
Day) of the proposed Transaction Rate Borrowing, which
Transaction Rate Request shall include the principal amount
and proposed Interest Period of the relevant Transaction Rate
Borrowing, (b) prior to 1:30 p.m. (Atlanta, Georgia time) on
such date, Wachovia shall furnish the Borrower, with a copy to
the Administrative Agent, with its rate quote (a "Transaction
Rate Quote") via facsimile transmission, (c) the Borrower
shall immediately inform Wachovia and the Administrative Agent
of its decision as to whether to request a Transaction Rate
Borrowing at the Transaction Rate specified in such
Transaction Rate Quote (a "Transaction Rate") (which may be
done by telephone and promptly confirmed in writing, and which
decision shall be irrevocable), and (d) if the Borrower has so
informed Wachovia and the Administrative Agent that it does
desire a Transaction Rate Borrowing at the Transaction Rate
specified in such Transaction Rate Quote, then by 2:00 p.m.
(Atlanta, Georgia time) on the date of such decision, Wachovia
shall make such Transaction Rate Borrowing, with interest
accruing thereon at such Transaction Rate, available to the
Administrative Agent in accordance with the procedures set
forth herein. The Administrative Agent shall notify the Banks
of any Transaction Rate Borrowing pursuant hereto.
(iii) At any time, upon the request of Wachovia,
each Bank other than Wachovia shall, on the third Domestic
Business Day after such request is made, purchase a
participating interest in Swing Loans in an amount equal to
its ratable share (based upon its respective Commitment) of
such Swing Loans. On such third Domestic Business Day, each
Bank will immediately transfer to Wachovia, in immediately
available funds, the amount of its participation. Whenever, at
any time after Wachovia has received from any such Bank its
participating interest in a Swing Loan, the Administrative
Agent receives any payment on account
22
thereof, the Administrative Agent will distribute to such Bank
its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the
period of time during which such Bank's participating interest
was outstanding and funded); provided, however, that in the
event that such payment received by the Administrative Agent
is required to be returned, such Bank will return to the
Administrative Agent any portion thereof previously
distributed by the Administrative Agent to it. Each Bank's
obligation to purchase such participating interests shall be
absolute and unconditional and shall not be affected by any
circumstance, including, without limitation: (i) any set-off,
counterclaim, recoupment, defense or other right which such
Bank or any other Person may have against Wachovia requesting
such purchase or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of
Default or the termination of the Commitments; (iii) any
adverse change in the condition (financial or otherwise) of
the Borrower, the Parent or any other Person; (iv) any breach
of this Agreement by the Borrower or any other Bank; or (v)
any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS AND SWING
LOANS.
(a) For all Loans other than Transaction Rate Loans, the
Borrower shall give the Administrative Agent notice (a "Notice of Borrowing"),
which shall be substantially in the form of Exhibit E-1 (and for Foreign
Currency Borrowings, Russell Europe Limited hereby authorizes Russell
Corporation to execute and deliver a Notice of Borrowing and a Notice of
Continuation or Conversion, as the case may be, in its name, as its agent),
prior to (i) 9:30 A.M. (Atlanta, Georgia time) for Base Rate Borrowings which
are Syndicated Borrowings, and 1:00 P.M. (Atlanta, Georgia time) for Base Rate
Borrowings which are Swing Loan Borrowings, in each case on the same Domestic
Business Day of each Base Rate Borrowing, and (ii) 11:00 A.M. (Atlanta, Georgia
time) for all Syndicated Borrowings at least 3 Euro-Dollar Business Days before
each Euro-Dollar Borrowing and at least 3 Foreign Currency Business Days before
each Foreign Currency Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Borrowing, a
Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing and a Foreign Currency Business Day in the case of a
Foreign Currency Borrowing
(ii) the aggregate amount of such Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans, Euro-Dollar Loans or
Foreign Currency Loans, or stating that such Borrowing is to
be a Swing Loan Borrowing, and if such Loans are to be Foreign
Currency Loans, specifying the Foreign Currency, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
23
(b) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
(unless such Borrowing is a Swing Loan Borrowing) of such Bank's ratable share
of such Syndicated Borrowing and such Notice of Borrowing, once received by the
Administrative Agent, shall not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time) on
the date of each Syndicated Borrowing, each Bank shall (except as provided in
paragraph (d) of this Section) make available its ratable share of such
Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Administrative Agent at its address determined pursuant
to Section 9.01 (or, with respect to Foreign Currency Borrowings, to the
Administrative Agent's designated foreign correspondent bank at the address
specified by the Administrative Agent), which funds shall be in Dollars, if such
Borrowing is a Dollar Borrowing, and in the applicable Foreign Currency, if such
Borrowing is a Foreign Currency Borrowing. Unless the Administrative Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Administrative Agent will make the funds so received from the
Banks available to the Borrower at the Administrative Agent's aforesaid address.
Unless the Administrative Agent receives notice from a Bank, at the
Administrative Agent's address referred to in or specified pursuant to Section
9.01, no later than 4:00 P.M. (local time at such address) on the Domestic
Business Day before the date of a Syndicated Borrowing stating that such Bank
will not make a Syndicated Loan in connection with such Syndicated Borrowing,
the Administrative Agent shall be entitled to assume that such Bank will make a
Syndicated Loan in connection with such Syndicated Borrowing and, in reliance on
such assumption, the Administrative Agent may (but shall not be obligated to)
make available such Bank's ratable share of such Syndicated Borrowing to the
Borrower for the account of such Bank. If the Administrative Agent makes such
Bank's ratable share available to the Borrower and such Bank does not in fact
make its ratable share of such Syndicated Borrowing available on such date, the
Administrative Agent shall be entitled to recover such Bank's ratable share from
such Bank or the Borrower (and for such purpose shall be entitled to charge such
amount to any account of the Borrower maintained with the Administrative Agent
after giving the Borrower 2 Domestic Business Days' prior notice thereof),
together with interest thereon for each day during the period from the date of
such Syndicated Borrowing until such sum shall be paid in full at a rate per
annum equal to the rate at which the Administrative Agent determines that it
obtained (or could have obtained) overnight Federal funds to cover such amount
for each such day during such period, provided that (i) any such payment by the
Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower may have against such Bank and (ii)
until such Bank has paid its ratable share of such Syndicated Borrowing,
together with interest pursuant to the foregoing, it will have no interest in or
rights with respect to such Syndicated Borrowing for any purpose hereunder. If
the Administrative Agent does not exercise its option to advance funds for the
account of such Bank, it shall forthwith notify the Borrower of such decision.
Unless the Administrative Agent determines that any applicable condition
specified in Article III has not been satisfied, Wachovia will make available to
the Borrower at Wachovia's Lending Office the amount of any such Borrowing which
is a Swing Loan Borrowing.
(d) If any Bank makes a new Syndicated Loan hereunder on
a day on which the Borrower is to repay all or any part of an outstanding
Syndicated Loan from such Bank, such
24
Bank shall apply the proceeds of its new Syndicated Loan to make such repayment
as a Refunding Loan and only an amount equal to the difference (if any) between
the amount being borrowed and the amount of such Refunding Loan shall be made
available by such Bank to the Administrative Agent as provided in paragraph (c)
of this Section, or remitted by the Borrower to the Administrative Agent as
provided in Section 2.13, as the case may be; provided, however, that if the
Syndicated Loan which is to be repaid is a Foreign Currency Loan, the foregoing
provisions shall apply only if the new Syndicated Loan is to be made in the same
Foreign Currency.
(e) Notwithstanding anything to the contrary contained in
this Agreement, no Fixed Rate Borrowing may be made if there shall have occurred
a Default or an Event of Default, which Default or Event of Default shall not
have been cured or waived, and in such event, all Refunding Loans shall be made
as Base Rate Loans (but shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to
specify whether the Syndicated Loans comprising such Syndicated Borrowing are to
be Base Rate Loans, Euro-Dollar Loans or Foreign Currency Loans, such Syndicated
Loans shall be made as Base Rate Loans. If the Borrower is otherwise entitled
under this Agreement to repay any Syndicated Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Syndicated
Borrowing, and the Borrower fails to repay such Syndicated Loans using its own
moneys and fails to give a Notice of Borrowing in connection with such new
Syndicated Borrowing, a new Syndicated Borrowing shall be deemed to be made on
the date such Syndicated Loans mature in an amount equal to the principal amount
of the Syndicated Loans so maturing, and the Syndicated Loans comprising such
new Syndicated Borrowing shall be Base Rate Loans, which shall be in the Dollar
Equivalent of such maturing Loans, if such maturing Loans were Foreign Currency
Loans.
(g) Notwithstanding anything to the contrary contained
herein, there shall not be more than 8 Interest Periods (other than for
Transaction Rate Loans, which shall not be limited in number) outstanding at any
given time.
SECTION 2.03. [RESERVED].
SECTION 2.04. CONTINUATION AND CONVERSION ELECTIONS. By
delivering a notice (a "Notice of Continuation or Conversion"), which shall be
substantially in the form of Exhibit E-2, to the Administrative Agent on or
before 12:00 P.M., Atlanta, Georgia time, on a Domestic Business Day (or
Euro-Dollar Business Day, in the case of Euro-Dollar Loans outstanding, or
Foreign Currency Business Day, in the case of Foreign Currency Loans
outstanding), the Borrower may from time to time irrevocably elect, by notice on
the same Domestic Business Day, in the case of Base Rate Loans, or 3 Euro-Dollar
Business Days, in the case of Euro-Dollar Loans, or 3 Foreign Currency Business
Days, in the case of Foreign Currency Loans, that all, or any portion be, (i) in
the case of Base Rate Loans, converted into Euro-Dollar Loans or Foreign
Currency Loans in an aggregate principal amount of $5,000,000 or any larger
integral multiple of $1,000,000 or, (ii) in the case of Euro-Dollar Loans,
converted into Base Rate Loans or Foreign Currency Loans in an aggregate
principal amount of $5,000,000 or any larger integral multiple of $1,000,000 (or
the Dollar Equivalent thereof, in the case of Foreign Currency Loans) or
25
continued as Euro-Dollar Loans in an aggregate principal amount of $5,000,000 or
any larger integral multiple of $1,000,000, or (iii) in the case of Foreign
Currency Loans, continued as Foreign Currency Loans in the same Foreign Currency
(in the absence of delivery of a Notice of Continuation or Conversion with
respect to any Euro-Dollar Loan at least 3 Euro-Dollar Business Days before the
last day of the then current Interest Period with respect thereto, such
Euro-Dollar Loan shall, on such last day, automatically convert to a Base Rate
Loan); provided, however, that (x) each such conversion or continuation shall be
pro rated among the applicable outstanding Loans of all Lenders that have made
such Loans, and (y) no portion of the outstanding principal amount of any Loans
may be continued as, or be converted into, any Fixed Rate Loan when any Event of
Default has occurred and is continuing.
SECTION 2.05. NOTES.
(a) The Syndicated Loans of each Bank shall be evidenced
by a single Syndicated Dollar Loan Note payable to the order of such Bank for
the account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment and a single Foreign Currency Loan Note from
each of Russell Corporation and Russell Europe Limited, each payable to the
order of such Bank for the account of its Lending Office. The Swing Loans shall
be evidenced by a single Swing Loan Note payable to the order of Wachovia in the
original principal amount of $15,000,000.
(b) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Administrative Agent shall deliver such Notes to such Bank. Each Bank
shall record, and prior to any transfer of its Notes shall endorse on the
schedules forming a part thereof appropriate notations to evidence, the date,
amount and maturity of, and effective interest rate for, each Loan made by it,
the date and amount of each payment of principal made by the Borrower with
respect thereto, whether such Loan is a Base Rate Loan, Euro-Dollar Loan or
Foreign Currency Loan, and if a Foreign Currency Loan, a specification of the
Foreign Currency, and such schedules of each such Bank's Notes shall constitute
rebuttable presumptive evidence of the respective principal amounts owing and
unpaid on such Bank's Notes; provided that the failure of any Bank to make, or
any error in making, any such recordation or endorsement shall not affect the
obligation of the Borrower hereunder or under the Notes or the ability of any
Bank to assign its Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.06. MATURITY OF LOANS.
(a) Each Fixed Rate Loan included in any Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding
principal amount of the Loans, if any, together with all accrued but unpaid
interest thereon, if any, shall be due and payable on the Termination Date.
SECTION 2.07. INTEREST RATES.
26
(a) "Applicable Margin" means, beginning on the
Restatement Effective Date, (i) for any Base Rate Loan, 2.50% and (ii) for any
Euro-Dollar Loan or Foreign Currency Loan, 3.00%.
(b) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to the Base Rate for such
day plus the Applicable Margin. Such interest shall be payable on each Quarterly
Payment Date while such Base Rate Loan is outstanding and on the date such Base
Rate Loan is converted to a Fixed Rate Loan. Any overdue principal of and, to
the extent permitted by applicable law, overdue interest on any Base Rate Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than 3 months, at intervals of 3 months after
the first day thereof. Any overdue principal of and, to the extent permitted by
law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan, the
rate per annum determined on the basis of the offered rate for deposits in
Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period, which
rates appear on Telerate Page 3750 effective as of 11:00 A.M., London time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the "London
Interbank Offered Rate" for such Interest Period will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100th of 1%) of rates quoted
by not less than 2 major banks in New York City, selected by the Administrative
Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar Business
Days prior to the first day of such Interest Period, for deposits in Dollars
offered by leading European banks for a period comparable to such Interest
Period in an amount comparable to the principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other
27
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Each Foreign Currency Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted IBOR Rate for such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by law, overdue
interest on any Foreign Currency Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the Default Rate.
"Adjusted IBOR Rate" means, with respect to each Interest
Period for a Foreign Currency Loan, the sum of (i) the rate obtained by dividing
(A) IBOR for such Interest Period by (B) a percentage equal to 1 minus the then
stated maximum rate (stated as a decimal) of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal Reserve System
as defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D), plus (ii) if the relevant Foreign Currency Loan is in
British pounds sterling, a percentage sufficient to compensate the Banks for the
cost of complying with any reserves, liquidity and/or special deposit
requirements of the Bank of England directly or indirectly affecting the
maintenance or funding of such Foreign Currency Loan.
"IBOR" means, for any Interest Period, with respect to Foreign
Currency Loans, the offered rate for deposits in the applicable Foreign
Currency, for a period comparable to the Interest Period and in an amount
comparable to the amount of such Foreign Currency Loan appearing on Telerate
Page 3750, or, if Telerate is unavailable the Reuters Screen Page FRBD, FRBE,
FRBF or FRBG, as applicable, or, if it is unavailable on either Telerate or the
Reuters Screen, then such rate shall be determined by the Administrative Agent
from any other interest rate reporting service of recognized standing designated
in writing by the Administrative Agent to the Borrower as of 11:00 A.M. (London,
England time) on the day that is two Business Days prior to the first day of the
Interest Period.
(e) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The Administrative Agent shall
give prompt notice to the Borrower and the Banks by telecopier of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
(f) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) may, at the election
of the Required Banks, bear interest at the Default Rate.
SECTION 2.08. FEES. (a) The Borrower shall pay to the
Administrative Agent, for the ratable account of each Bank, a facility fee on
the aggregate amount of such Bank's Commitment (without taking into account the
outstanding Loans made by such Bank), at a rate
28
per annum equal to 0.50%. Such facility fees shall be payable on each Quarterly
Payment Date and on the Termination Date.
(b) The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates previously agreed to in writing
by the Borrower and the Administrative Agent.
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Administrative Agent, terminate at any time, or proportionately reduce the
Unused Commitments from time to time by an aggregate amount of at least
$5,000,000 or any larger integral multiple of $1,000,000. If the Commitments are
terminated in their entirety, all accrued fees (as provided under Section 2.08)
shall be due and payable on the effective date of such termination.
SECTION 2.10. MANDATORY REDUCTION AND TERMINATION OF
COMMITMENTS. The Commitments shall terminate on the Termination Date and any
Loans then outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.11. OPTIONAL PREPAYMENTS.
(a) The Borrower may, upon at least 1 Domestic Business
Days' notice to the Administrative Agent, prepay, without premium or penalty,
any Base Rate Borrowing in whole at any time, or from time to time in part in
amounts aggregating at least $1,000,000 with additional increments of $500,000
(or any lesser amount equal to the outstanding balance of such Loan), or
$100,000 as to Swing Loans, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base Rate Loans of
the several Banks or of Wachovia, in the case of Swing Loans included in such
Base Rate Borrowing.
(b) Subject to any payments required pursuant to the
terms of Article VIII for such Fixed Rate Loan, upon 3 Domestic Business Day's
prior written notice, the Borrower may prepay in minimum amounts of $5,000,000
with additional increments of $1,000,000 (or any lesser amount equal to the
outstanding balance of such Loan) all or any portion of the principal amount of
any Fixed Rate Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to
this Section 2.11, the Administrative Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share of such prepayment and
such notice, once received by the Administrative Agent, shall not thereafter be
revocable by the Borrower.
SECTION 2.12. MANDATORY PREPAYMENTS.
(a) On each date on which the conditions set forth in
clauses (i), (ii) or (iii) of Section 2.01(a) or clause (i) of Section 2.01(b),
are not satisfied (including, without limitation, by reason of the reduction of
the Commitments pursuant to Section 2.09 or Section 2.10), the Borrower shall
repay or prepay such principal amount of the outstanding Loans, if any (together
with interest accrued thereon and any amount due under Section 8.05(a)), as may
be necessary so that after such payment, the Total Revolving Extensions of
Credit do not exceed the Aggregate
29
Commitments as then in effect (or, in the case of clause (iii) of Section
2.01(a), if less, the Clean-Down Amount); provided, that if the aggregate
principal amount of Syndicated Dollar Loans, Foreign Currency Loans and Swing
Loans then outstanding is less than the amount of such excess (because L/C
Obligations constitute a portion thereof), the Borrower shall, to the extent of
the balance of such excess, replace outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral account established with the
Administrative Agent for the benefit of the Banks on terms and conditions
satisfactory to the Administrative Agent.. Each such payment or prepayment shall
be applied first to any Swing Loans outstanding which are Base Rate Loans, then
to any Swing Loans outstanding which are Transaction Rate Loans, and then
ratably to the Loans of the Banks outstanding on the date of payment or
prepayment in the following order of priority: (i) first, to Base Rate Loans;
and (ii) lastly, to Euro-Dollar Loans.
(b) If the Administrative Agent determines at any time
(either on its own initiative or at the instance of any Bank) that the aggregate
principal amount of the Foreign Currency Loans outstanding (after converting
each Foreign Currency Loan to its Dollar Equivalent on the date of calculation)
at any time exceeds either (i) a Dollar Equivalent of $25,000,000 or (ii) 105%
of the aggregate amount of all of the Commitments less the outstanding aggregate
amount of all Syndicated Dollar Loans, L/C Obligations and Swing Loans, then
upon 5 Foreign Currency Business Days' written notice from the Administrative
Agent, the Borrower shall prepay an aggregate principal amount of Foreign
Currency Loans sufficient to bring the aggregate of the Foreign Currency Loans
outstanding to no more than a Dollar Equivalent of $25,000,000 and within the
aggregate amount of all of the Commitments less the outstanding aggregate amount
of all Syndicated Dollar Loans, L/C Obligations and Swing Loans. Nothing in the
foregoing shall require the Administrative Agent to make any such calculation
unless expressly requested to do so by the Required Banks.
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, without any setoff,
counterclaim or any deduction whatsoever, not later than 11:00 A.M. (Atlanta,
Georgia time) on the date when due, in Federal or other funds (subject to
paragraph (c) below, with respect to Foreign Currency Loans) immediately
available in Atlanta, Georgia, to the Administrative Agent at its address
referred to in Section 9.01. The Administrative Agent will promptly distribute
to Wachovia each such payment received on account of the Swing Loans and to each
Bank its ratable share of each such payment received by the Administrative Agent
for the account of the Banks.
(b) Whenever any payment of principal of, or interest on,
the Base Rate Loans or of fees hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans or the Foreign Currency Loans shall be due on
a day which is not a Euro-Dollar Business Day or Foreign Currency Business Day,
as the case may be, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day or Foreign Currency Business Day, as the
case may be, unless such Euro-Dollar Business Day or Foreign Currency Business
Day, as the case may be, falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day or
Foreign Currency Business Day, as the case may be.
30
(c) All payments of principal and interest with respect
to Foreign Currency Loans shall be made in the Foreign Currency in which the
related Foreign Currency Loan was made.
(d) All payments of principal, interest and fees and all
other amounts to be made by the Borrower pursuant to this Agreement with respect
to any Loan or fee relating thereto shall be paid without deduction for, and
free from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any Authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its net
income, and franchise taxes imposed on it, by the jurisdiction of such Bank's
applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that the Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any Loan
or fee or other amount, the Borrower shall pay such deduction or withholding to
the applicable taxing authority, shall promptly furnish to any Bank in respect
of which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the amount received by such Bank after the required
withholding or other payment shall equal the amount such Bank would have
received had no such withholding or other payment been made.
Each Bank (x) as to Russell Corporation, which is not
organized under the laws of the United States or any state thereof and (y) as to
Russell Europe Limited, which is organized under the laws of the United States
or any state thereof, agrees, as soon as practicable after receipt by it of a
request by the Borrower to do so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other appropriate document from
the appropriate Authority in the jurisdiction imposing the relevant Taxes,
establishing that it is entitled to receive payments of principal and interest
under this Agreement and the Notes without deduction and free from withholding
of any Taxes imposed by such jurisdiction; provided that if it is unable, for
any reason, to establish such exemption, or to file such forms and, in any
event, during such period of time as such request for exemption is pending, the
Borrower shall nonetheless remain obligated under the terms of the immediately
preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by
the Borrower pursuant to this Section 2.13(d), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.13(d) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Notes.
31
SECTION 2.14. COMPUTATION OF INTEREST AND FEES. Interest on
Base Rate Loans shall be computed on the basis of a year of 365 or 366 days, as
applicable, and paid for the actual number of days elapsed (including the first
day but excluding the last day). Interest on Euro-Dollar Loans, Transaction Rate
Loans and Foreign Currency Loans shall be computed on the basis of a year of 360
days (except for any Foreign Currency Loans outstanding in British pounds
sterling, or, if selected as a Foreign Currency pursuant to clause (iii) of the
definition of "Foreign Currency," in Australian dollars, Belgian francs,
Canadian dollars, Irish punts or New Zealand dollars, which shall be computed on
the basis of a year of 365 or 366 days, as the case may be) and paid for the
actual number of days elapsed, calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof. Facility
fees and any other fees payable hereunder shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day).
SECTION 2.15. LETTERS OF CREDIT
(a) L/C Commitment.
(i) Subject to the terms and conditions hereof,
the Issuing Bank, in reliance on the agreements of the other Banks set
forth in Section 2.15(d), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower on any Domestic Business
Day during the Stated Term in such form as may be approved from time to
time by the Issuing Bank; provided, that the Issuing Bank shall have no
obligation to issue any Letter of Credit if, after giving effect to
such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the aggregate amount of the Available Commitments would be less
than zero. Each Letter of Credit shall (i) be denominated in Dollars
and (ii) expire no later than the earlier of (x) the first anniversary
of its date of issuance and (y) the date that is five Domestic Business
Days prior to the last day of the Stated Term, provided that any Letter
of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the
date referred to in clause (y) above).
(ii) The Issuing Bank shall not at any time be
obligated to issue any Letter of Credit if such issuance would conflict
with, or cause the Issuing Bank or any L/C Participant to exceed any
limits imposed by, any provision of applicable law or regulation or of
the charter or bylaws of the Issuing Bank or L/C Participant, as the
case may be.
(b) Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that the Issuing Bank issue a Letter of
Credit by delivering to the Issuing Bank at its address for notices specified in
the signature pages herein an Application therefor, completed to the
satisfaction of the Issuing Bank, and such other certificates, documents and
other papers and information as the Issuing Bank may request. Upon receipt of
any Application, the Issuing Bank will process such Application and the
certificates, documents and other papers
32
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Domestic Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Bank and the Borrower. The Issuing Bank shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Bank shall promptly furnish to the Administrative Agent, which shall in
turn promptly furnish to the Banks, notice of the issuance of each Letter of
Credit (including the amount thereof).
(c) Fees and Other Charges.
(i) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Euro-Dollar Loans,
shared ratably among the Banks and payable quarterly in arrears on each
Quarterly Payment Date after the issuance date and on the Termination
Date. In addition, the Borrower shall pay to the Issuing Bank for its
own account a fronting fee of 0.25% per annum on the undrawn and
unexpired amount of each Letter of Credit, payable quarterly in arrears
on each Quarterly Payment Date after the issuance date and on the
Termination Date.
(ii) In addition to the foregoing fees, the
Borrower shall pay or reimburse the Issuing Bank for such normal and
customary costs and expenses as are incurred or charged by the Issuing
Bank in issuing, negotiating, effecting payment under, amending or
otherwise administering any Letter of Credit.
(d) L/C Participations.
(i) The Issuing Bank irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce the Issuing Bank
to issue Letters of Credit, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing
Bank, on the terms and conditions set forth below, for such L/C
Participant's own account and risk an undivided interest equal to such
L/C Participant's Revolving Percentage in the Issuing Bank's
obligations and rights under and in respect of each Letter of Credit
and the amount of each draft paid by the Issuing Bank thereunder. Each
L/C Participant unconditionally and irrevocably agrees with the Issuing
Bank that, if a draft is paid under any Letter of Credit for which the
Issuing Bank is not reimbursed in full by the Borrower in accordance
with the terms of this Agreement, such L/C Participant shall pay to the
Issuing Bank upon demand at the Issuing Bank's address for notices
specified in the signature pages hereof an amount equal to such L/C
Participant's Revolving Percentage of the amount of such draft, or any
part thereof, that is not so reimbursed.
(ii) If any amount required to be paid by any L/C
Participant to the Issuing Bank pursuant to Section 2.15(d)(i) in
respect of any unreimbursed portion of any payment made by the Issuing
Bank under any Letter of Credit is paid to the Issuing Bank within
three Domestic Business Days after the date such payment is due, such
L/C Participant shall pay to the Issuing Bank on demand an amount equal
to the product of (i) such amount, times (ii) the daily average Federal
Funds Rate during the period from and including the date such payment
is required to the date on which such payment is
33
immediately available to the Issuing Bank, times (iii) a fraction the
numerator of which is the number of days that elapse during such period
and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to Section 2.15(d)(i) is not made
available to the Issuing Bank by such L/C Participant within three
Domestic Business Days after the date such payment is due, the Issuing
Bank shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans. A certificate of the
Issuing Bank submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of
manifest error.
(iii) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with
Section 2.15(d)(i), the Issuing Bank receives any payment related to
such Letter of Credit (whether directly from the Borrower or otherwise,
including proceeds of collateral applied thereto by the Issuing Bank),
or any payment of interest on account thereof, the Issuing Bank will
distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by
the Issuing Bank shall be required to be returned by the Issuing Bank,
such L/C Participant shall return to the Issuing Bank the portion
thereof previously distributed by the Issuing Bank to it.
(e) Reimbursement Obligations of the Borrower. If any draft is
paid under any Letter of Credit, the Borrower shall reimburse the Issuing Bank
for the amount of (a) the draft so paid and (b) any taxes, fees, charges or
other costs or expenses incurred by the Issuing Bank in connection with such
payment, not later than 12:00 Noon (Atlanta, Georgia time) on (i) the Domestic
Business Day that the Borrower receives notice of such draft, if such notice is
received on such day prior to 10:00 A.M. (Atlanta, Georgia time), or (ii) if
clause (i) above does not apply, the Domestic Business Day immediately following
the day that the Borrower receives such notice. Each such payment shall be made
to the Issuing Bank at its address for notices referred to herein in Dollars and
in immediately available funds. Interest shall be payable on any such amounts
from the date on which the relevant draft is paid until payment in full at the
rate set forth in Section 2.07(b) until the Domestic Business Day next
succeeding the date of the relevant notice, and thereafter, at the rate set
forth in Section 2.07(f).
(f) Obligations Absolute. The Borrower's obligations under this
Section 2.15 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against the Issuing Bank, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Bank that the Issuing Bank shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 2.15(e) shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any
34
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Issuing Bank. The Borrower agrees that any action
taken or omitted by the Issuing Bank under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Commercial Code of the State of Georgia, shall be
binding on the Borrower and shall not result in any liability of the Issuing
Bank to the Borrower.
(g) Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Bank shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing Bank
to the Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.
(h) Inconsistency with Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 2.15, the provisions of this Section 2.15 shall apply.
ARTICLE III.
CONDITIONS TO BORROWINGS
SECTION 3.01. CONDITIONS TO EFFECTIVENESS OF THE AMENDED AND
RESTATED CREDIT AGREEMENT. The effectiveness of the amendment and restatement of
the Existing Credit Agreement is subject to the satisfaction of the following
conditions:
(a) receipt by the Administrative Agent from each of the
parties hereto of either (i) duly executed counterparts of this
Agreement signed by such party (in sufficient number for delivery of a
counterpart to each Bank and retention of one counterpart by the
Administrative Agent) or (ii) a facsimile transmission of such executed
counterpart, with the original to be sent to the Administrative Agent
by overnight courier);
(b) receipt by the Administrative Agent of the Consent
and Confirmation, substantially in the form of Exhibit M, executed and
delivered by the Borrower and each Subsidiary party to any Security
Documents;
(c) each of the representations and warranties made by
the Borrower in or pursuant to the Loan Documents shall be true and
correct on and as of the Restatement Effective Date as if made on and
as of such date;
35
(d) no Default or Event of Default shall have occurred
and be continuing on the Restatement Effective Date or after giving
effect to the amendments to the Existing Credit Agreement to be
effected on such date;
(e) the Borrower shall have entered into an engagement
letter on terms reasonably satisfactory to the Required Banks regarding
the sale and leaseback of the Borrower's Montgomery, Alabama
distribution center;
(f) the Borrower and Russell Financial shall have entered
into the Receivables Purchase Agreement on terms reasonably
satisfactory to the Required Banks, providing for the sale by the
Borrower and/or Russell Financial of Receivables for the amount of
$50,000,000; and
(g) receipt by (i) the Administrative Agent for the
benefit of each of the Banks of an amendment fee in an amount equal to
0.30% of such Bank's Commitment and (ii) the Administrative Agent and
the Banks of all other fees required to be paid (including, without
limitation, all fees payable pursuant to the Letter Agreements), and
all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the
Restatement Effective Date.
SECTION 3.02. CONDITIONS TO ALL EXTENSIONS OF CREDIT. The
obligation of each Bank to make a Syndicated Loan on the occasion of each
Borrowing and to issue or participate in Letters of Credit, and of Wachovia to
make a Swing Loan is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing.
(b) the fact that, immediately before and after the
making of such extensions of credit, no Default shall have occurred and
be continuing;
(c) the fact that the representations and warranties of
the Borrower contained in Article IV of this Agreement shall be true on
and as of the date of such Borrowing (except to the extent any such
representation or warranty is expressly made as of a prior date); and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i), (ii) and (iii) of Section 2.01(a)
shall have been satisfied.
Each Syndicated Borrowing and each Notice of Continuation or
Conversion hereunder shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the truth and accuracy of the facts
specified in paragraphs (b), (c) and (d) of this Section; provided, that if such
Borrowing is a Syndicated Borrowing which consists solely of a Refunding Loan
then, (i) if such Borrowing is a Fixed Rate Borrowing or such Notice of
Continuation or Conversion is to a Fixed Rate Loan, such Borrowing or Notice of
Continuation or Conversion shall be deemed to be such a representation and
warranty by the Borrower only as to the matters set forth in paragraphs (b) and
(d) above, and (ii) if such Borrowing is a Base Rate Borrowing, or such Notice
of Continuation or Conversions is to a Base Rate Loan, such Borrowing or Notice
of Continuation or Conversion shall be deemed to be a
36
representation and warranty by the Borrower only as to the matters set forth in
paragraph (d) above.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Alabama (or, if elected by the Borrower, the State of Delaware),
is duly qualified to transact business in every jurisdiction where, by the
nature of its business, such qualification is necessary, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted, except where the failure to
qualify or have any such powers, licenses, authorizations, consent or approvals
does not have and could not reasonably be expected to cause a Material Adverse
Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the charter
or bylaws of the Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its Subsidiaries,
provided that the aggregate outstanding Borrowings under this Agreement do not
exceed the limitations thereon contained in any such other agreements or
instruments and (v) do not result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of December 30, 2000 and the related
consolidated statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, reported on by Ernst & Young LLP, copies of which have
been delivered to each of the Banks, and the unaudited consolidated financial
statements of the Borrower for the interim periods ended April 1, July 1 and
September 30, 2001, copies of each of which have been delivered to each of the
Banks,
37
fairly present, in conformity with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such dates and their
consolidated results of operations and cash flows for such periods stated.
(b) Since December 30, 2000, except for any matters which
have been disclosed in the filings by the Borrower under the Securities Exchange
Act of 1934 made prior to the Restatement Effective Date and made available to
the Banks, there has been no event, act, condition or occurrence having a
Material Adverse Effect.
SECTION 4.05. NO LITIGATION. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official which could reasonably be expected
to have a Material Adverse Effect or which in any manner draws into question the
validity of, or would restrict the Borrower from performing its obligations
under, this Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. COMPLIANCE WITH ERISA.
(a) The Borrower and each member of the Controlled Group
have fulfilled their obligations under the minimum funding standards of ERISA
and the Code with respect to each Plan and are in compliance in all material
respects with the presently applicable provisions of ERISA and the Code, and
have not incurred any liability to the PBGC or a Plan under Title IV of ERISA,
except where the failure to comply does not have and could not reasonably be
expected to cause a Material Adverse Effect.
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The
Borrower and its Subsidiaries are in compliance with all applicable laws,
regulations and similar requirements of governmental authorities, except where
such compliance is being contested in good faith through appropriate
proceedings, and except where the failure to comply does not have and could not
reasonably be expected to cause a Material Adverse Effect. There have been filed
on behalf of the Borrower and its Subsidiaries all Federal, state and material
local income, excise, property and other tax returns which are required to be
filed by them and all taxes shown as being due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Borrower or any
Subsidiary have been paid, except taxes being contested in good faith and
against which, if requested by the Administrative Agent, the Borrower will set
up reserves in accordance with GAAP. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate. United
States income tax returns of the Borrower and its Subsidiaries have been
examined and closed through the Fiscal Year ended January 1, 1994.
SECTION 4.08. SUBSIDIARIES. Each of the Borrower's
Subsidiaries is an entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of formation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all entity powers and all governmental
licenses,
38
authorizations, consents and approvals required to carry on its business as now
conducted, except where the failure to qualify does not have and could not
reasonably be expected to cause a Material Adverse Effect. As of the date
hereof, the Borrower has no Subsidiaries except for those Subsidiaries listed on
Schedule 4.08, which accurately sets forth each such Subsidiary's complete name
and jurisdiction of incorporation.
SECTION 4.09. INVESTMENT COMPANY ACT. Neither the Borrower nor
any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS. Each of the
Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.17.
SECTION 4.12. NO DEFAULT. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could have or could reasonably be expected to cause a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
SECTION 4.13. FULL DISCLOSURE. All information heretofore
furnished by the Borrower to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Borrower to the
Administrative Agent or any Bank will be, true, accurate and complete in every
material respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts known to the Borrower which could have or could
reasonably be expected to cause a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS.
(a) Neither the Borrower nor any Subsidiary is subject to
any Environmental Liability which could have or could reasonably be expected to
cause a Material Adverse Effect and neither the Borrower nor any Subsidiary has
been designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA. To the best of the Borrower's knowledge, none
of the Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties by the Borrower or its agents, or to
39
the best of the Borrower's knowledge, any Third Parties or are otherwise present
at, on, in or under the Properties, or, to the best of the Borrower's knowledge,
at or from any adjacent site or facility, except for Hazardous Materials used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed, or otherwise handled in the ordinary course of business in
compliance with all applicable Environmental Requirements, and except where the
failure to comply does not have and could not reasonably be expected to cause a
Material Adverse Effect.
(c) The Borrower, and each of its Subsidiaries and
Affiliates, has procured all Environmental Authorizations necessary for the
conduct of its business, and is in compliance with all Environmental
Requirements in connection with the operation of the Properties and the
Borrower's, and each of its Subsidiary's and Affiliate's, respective businesses,
except where the failure to comply does not have and could not reasonably be
expected to cause a Material Adverse Effect.
SECTION 4.15. CAPITAL STOCK. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned directly or
indirectly by the Borrower free and clear of any Lien or adverse claim except
the Liens created pursuant to the Security Documents. At least a majority of the
issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Borrower free and clear
of any Lien or adverse claim except the Liens created pursuant to the Security
Documents.
SECTION 4.16. MARGIN STOCK. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock, except
for Permitted Acquisitions and purchases of treasury stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock, or be used
for any purpose which violates, or which is inconsistent with, the provisions of
Regulation U or X.
SECTION 4.17. INSOLVENCY. After giving effect to the execution
and delivery of the Loan Documents and the making of the Loans under this
Agreement: (i) the Borrower will not (x) be "insolvent," within the meaning of
such term as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the
"Bankruptcy Code", or Section 2 of either the "UFTA" or the "UFCA", or as
defined or used in any "Other Applicable Law" (as those terms are defined
below), or (y) be unable to pay its debts generally as such debts become due
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 6 of the UFCA, or (z) have an unreasonably small capital to engage in
any business or transaction, whether current or contemplated, within the meaning
of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the
UFCA; and (ii) the obligations of the Borrower under the Loan Documents and with
respect to the Loans will not be rendered avoidable under any Other Applicable
Law. For purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the
United States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA"
means the
40
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable law pertaining to fraudulent transfers or acts voidable by creditors,
in each case as such law may be amended from time to time.
SECTION 4.18. INSURANCE. The Borrower and each of its
Subsidiaries has (either in the name of the Borrower or in such Subsidiary's own
name), with financially sound and reputable insurance companies, insurance 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 and, in this connection, the Borrower and its
Subsidiaries have adequately insured, at their expense, all "assets held for
sale" as identified on Schedule 5.05 hereof.
ARTICLE V.
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or under any Note remains
unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to each
of the Banks:
(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 Borrower
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 Banks;
(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 Borrower 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, 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 Borrower;
(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 (a "Compliance Certificate"), of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.05,
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
41
details thereof and the action which the Borrower 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 Borrower'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 Banks 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 Banks and (B) accompanied by a certificate of
the chief financial officer or chief accounting officer of the Borrower 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 Banks (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 Borrower stating that such business forecast is based on reasonable
estimates, information and assumptions 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 Borrower
becomes aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting forth
the details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(h) promptly upon the mailing thereof to the shareholders
of the Borrower 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 Borrower 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
42
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 Borrower and its
Subsidiaries as the Administrative Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Borrower 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 Bank at such Bank's expense prior to the occurrence of a
Default and at the Borrower'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 Borrower agrees to cooperate and assist in
such visits and inspections, in each case upon reasonable notice and at such
reasonable times and as often as may reasonably be desired.
SECTION 5.03. MAINTENANCE OF EXISTENCE. The Borrower 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 5.05.
SECTION 5.04. [RESERVED].
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a)
The Borrower 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 Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
(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 Borrower or any Subsidiary Guarantor (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 Borrower 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 Borrower and certain of its Subsidiaries, of
Receivables pursuant to the Intercompany
43
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
Borrower or any Subsidiary Guarantor; (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 all Banks and the
Dollar Equivalent of the Foreign Currency Loans of all 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 Borrower and its Subsidiaries)); (vi)
the sale and leaseback of the Borrower'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 Borrower and its Subsidiaries listed on Schedule
5.05 hereof which have been categorized as "assets held for sale" by the
Borrower; 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 5.06. USE OF PROCEEDS. The proceeds of the Loans and
the Letters of Credit may be used for general corporate purposes including,
without limitation, refinancing other Debt, working capital and capital
expenditures; provided, that no portion of the proceeds of the Loans or the
Letters of Credit will be used by the Borrower or any Subsidiary (i) in
connection with, whether directly or indirectly, any tender offer for, or other
acquisition of, stock of any corporation with a view towards obtaining control
of such other corporation, unless such tender offer or other acquisition is to
be made on a negotiated basis with the approval of the Board of Directors of the
Person to be acquired, and the provisions of Section 5.16 would not be violated,
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, other than with respect to
Permitted Acquisitions and purchases of treasury stock or (iii) for any purpose
in violation of any applicable law or regulation.
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The
Borrower 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 Borrower 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 Borrower 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 Borrower or the
relevant Subsidiary.
SECTION 5.08. INSURANCE. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
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
44
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 Borrower's expense, of all
"assets held for sale" as identified on Schedule 5.05 hereof.
SECTION 5.09. CHANGE IN FISCAL YEAR. The Borrower 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 Banks.
SECTION 5.10. MAINTENANCE OF PROPERTY. Except as permitted by
Section 5.05 or in connection with the Restructuring Program, the Borrower
shall, and shall cause each Subsidiary to, maintain all of its properties and
assets (including all "assets held for sale" as identified in Schedule 5.05) in
good condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.11. ENVIRONMENTAL NOTICES. The Borrower shall
furnish to the Banks and the Administrative Agent prompt written notice of all
material Environmental Liabilities of which the Borrower has notice, pending,
threatened or anticipated Environmental Proceedings of which the Borrower 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 Borrower 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 Borrower 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
Borrower nor any of its Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Borrower or such Subsidiary (which
Affiliate is not the Borrower or a 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 Borrower 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 Borrower nor
any of its Subsidiaries shall declare or make any Restricted Payment, except
that (i) any Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary Guarantor and (ii) so long as no
45
Default or Event of Default is continuing (before or after giving effect to such
Restricted Payment), the Borrower may (a) pay dividends with respect to the
Capital Stock of the Borrower in an amount during any Fiscal Quarter not
exceeding $0.04 per share of the Borrower's issued and outstanding common
Capital Stock, (b) make payments in the ordinary course of the Borrower's
business in connection with an employee stock option, bonus, stock purchase or
other benefit plans of the Borrower on account of (1) the repurchase of
Borrower's Capital Stock, (2) options, warrants or other rights to acquire
shares of the Borrower's Capital Stock, or (3) other awards issued or granted
under such plans or (c) otherwise repurchase the Borrower'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 Restatement
Effective Date, neither the Borrower 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
Restatement 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 Banks, 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 Borrower 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 Borrower or any Subsidiary to the Borrower or any
Subsidiary Guarantor, (ix) Investments in Frontier Yarns LLC in an aggregate
amount not to exceed $9,900,000 (provided, that any cash Investments made in
Frontier shall be limited to the proceeds of the asset transfers of the
Borrower'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.
SECTION 5.17. PERMITTED LIENS AND DEBT. The Borrower will not,
nor will it permit any Consolidated Subsidiary to, create, assume or suffer to
exist any Lien upon any
46
Properties, or other assets, whether real or personal property, now owned or
hereafter acquired by the Borrower 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
Borrower 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 Borrower or a Consolidated Subsidiary and not
created in contemplation of such acquisition;
(f) any Lien securing Debt owing by any Subsidiary to the
Borrower 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 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 Loan 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;
47
(l) any Debt 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 thereto and hereto
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 Borrower to a Wholly-Owned Subsidiary and
Debt of a Consolidated Subsidiary to the Borrower or another Wholly-Owned
Subsidiary;
(n) Debt consisting of senior unsecured or senior
subordinated debt securities of the Borrower (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 Borrower provided that (i) the Borrower 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 Borrower and the Required Banks;
(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 Borrower 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 Borrower 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.
SECTION 5.18. RESTRICTIVE AGREEMENTS. The Borrower 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 Restatement 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 Loan 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 Restatement Effective Date in the ordinary course of business and
48
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 Borrower 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
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. Consolidated Net
Worth shall at no time 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
Restatement Effective Date, calculated quarterly at the end of each Fiscal
Quarter.
SECTION 5.22. DEBT SERVICE COVERAGE RATIO. The Borrower shall
not permit the Debt Service Coverage Ratio for any period of four consecutive
Fiscal Quarters ending with any
49
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
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 Borrower nor
any of its Consolidated Subsidiaries shall make or commit to make any Capital
Expenditure, except Capital Expenditures of the Borrower 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.
50
ARTICLE VI.
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal
of any Loan or Reimbursement Obligation or shall fail to pay any
interest on any Loan or Reimbursement Obligation within 5 Domestic
Business Days after such interest shall become due, or shall fail to
pay any fee or other amount payable hereunder or under any other Loan
Document within 5 Domestic Business Days after such fee or other amount
becomes due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.01(e), 5.02(ii), 5.03 through 5.06,
inclusive, Section 5.15, Section 5.17 or Sections 5.20 through 5.23,
inclusive; or
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in this
Agreement (other than those covered by paragraph (a) or (b) above) or
any other Loan Document and such failure shall not have been cured
within (1) 10 days, in the case of Sections 5.16 and 5.18, and (2) 30
days, in any other case, after the earlier to occur of (i) written
notice thereof has been given to the Borrower by the Administrative
Agent at the request of any Bank or (ii) the Borrower otherwise becomes
aware of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in Article IV of this Agreement, any of
the other Loan Documents or in any certificate, financial statement or
other document delivered pursuant to this Agreement or any other Loan
Document shall prove to have been incorrect or misleading in any
material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding in an aggregate principal amount
in excess of $5,000,000 (other than the Notes) when due or within any
applicable grace period; or
(f) any event or condition shall occur which results in
the acceleration of the maturity of Debt outstanding, or the
termination of a commitment to make available to the Borrower or any
Subsidiary any extension of credit, in an aggregate principal amount in
excess of $5,000,000 of or to the Borrower or any Subsidiary
(including, without limitation, any required mandatory prepayment or
"put" of such Debt to the Borrower or any Subsidiary) or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holders of such Debt or commitment or any Person acting on such
holders' behalf to accelerate the maturity thereof or terminate any
such commitment (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary); or
51
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group
shall fail to pay when due any amount which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans shall be filed under Title IV of
ERISA by the Borrower, any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any such Plan or Plans or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans
to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or the
Borrower or any other member of the Controlled Group shall enter into,
contribute or be obligated to contribute to, terminate or incur any
withdrawal liability with respect to, a Multiemployer Plan; provided,
in any of the foregoing cases, the amount required to be paid, or the
Unfunded Vested Liabilities under any such Plan, is in excess of
$5,000,000; or
(j) any of the Security Documents shall cease, for any
reason, to be in full force and effect, or the Borrower or any
Affiliate of the Borrower shall so assert, or any Lien created by any
of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby; or
(k) the guarantee contained in Section 2 of the Guarantee
and Collateral Agreement shall cease, for any reason, to be in full
force and effect or the Borrower or any Affiliate of the Borrower shall
so assert; or
(l) one or more judgments or orders for the payment of
money in an aggregate amount in excess of $5,000,000 shall be rendered
against the Borrower or any
52
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(m) a federal tax lien shall be filed against the
Borrower or any Subsidiary under Section 6323 of the Code or a lien of
the PBGC shall be filed against the Borrower or any Subsidiary under
Section 4068 of ERISA and in either case such lien is for an amount in
excess of $5,000,000 and shall remain undischarged for a period of 25
days after the date of filing; or
(n) (i) 30 days after any Person or two or more Persons
acting in concert (other than the Russell Family) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 30% or more of the outstanding shares of the voting stock of
the Borrower; or (ii) as of any date a majority of the Board of
Directors of the Borrower consists of individuals who were not either
(A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the
Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A), or (C) selected or nominated to
become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A) and
individuals described in clause (B);
then, and in every such event, (i) the Administrative Agent shall, if
requested by the Required Banks, by notice to the Borrower terminate
the Commitments and they shall thereupon terminate, and (ii) the
Administrative Agent shall, if requested by the Required Banks, by
notice to the Borrower declare the Notes (together with accrued
interest thereon), and all other amounts payable hereunder and under
the other Loan Documents, to be, and the Notes, including the Swing
Loan Note (together with accrued interest thereon), and all other
amounts payable hereunder and under the other Loan Documents (including
all amounts of L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents
required thereunder) shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower together with
interest at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default; provided that if any
Event of Default specified in paragraph (g) or (h) above occurs with
respect to the Borrower, without any notice to the Borrower or any
other act by the Agent or the Banks, the Commitments shall thereupon
terminate and the Notes (together with accrued interest thereon) and
all other amounts payable hereunder and under the other Loan Documents
(including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall automatically and
without notice become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower together with interest thereon at the Default
Rate accruing on the principal amount thereof from and after the date
of such Event of Default. Notwithstanding the foregoing, the
Administrative Agent shall have available to it all other remedies at
law or equity, and shall exercise any one or all of them at the request
of the Required Banks.
53
SECTION 6.02. NOTICE OF DEFAULT. The Administrative Agent
shall give notice to the Borrower of any Default under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall thereupon notify all the
Banks thereof.
SECTION 6.03. CASH COLLATERAL. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to Section 6.01, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
ARTICLE VII.
THE ADMINISTRATIVE AGENT
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES. (a) Each
Bank hereby irrevocably appoints and authorizes the Administrative Agent to act
as its agent hereunder and under the other Loan Documents with such powers as
are specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such other powers as are reasonably incidental thereto.
The Administrative Agent: (a) shall have no duties or responsibilities except as
expressly set forth in this Agreement and the other Loan Documents, and shall
not by reason of this Agreement or any other Loan Document be a trustee for any
Bank; (b) shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any Bank under, this Agreement or any other Loan Document, or
for the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by the Borrower to perform any
of its obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Banks,
and then only on terms and conditions satisfactory to the Administrative Agent,
and (d) shall not be responsible for any action taken or omitted to be taken by
it hereunder or under any other Loan Document or any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Administrative Agent and the
Banks, and the Borrower shall not
54
have any rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement and under the other
Loan Documents, the Administrative Agent shall act solely as agent of the Banks
and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower. The duties
of the Administrative Agent shall be ministerial and administrative in nature,
and the Administrative Agent shall not have by reason of this Agreement or any
other Loan Document a fiduciary relationship in respect of any Bank.
(b) Each Bank hereby confirms its designation of Suntrust
Bank (formerly Suntrust Bank, Atlanta) as the Syndication Agent and First Union
National Bank as the Documentation Agent. The Syndication Agent and the
Documentation Agent, in such capacity, shall have no duties or obligations
whatsoever under this Agreement or any other Loan Document or any other document
or any matter related hereto and thereto, but shall nevertheless be entitled to
all the indemnities and other protection afforded to the Administrative Agent
under this Article VII.
SECTION 7.02. RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telecopier, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon advice and statements
of legal counsel, independent accountants or other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
thereunder in accordance with instructions signed by the Required Banks, and
such instructions of the Required Banks in any action taken or failure to act
pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. DEFAULTS. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default or an Event of Default
(other than the nonpayment of principal of or interest on the Loans) unless the
Administrative Agent has received notice from a Bank or the Borrower specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or an Event of Default, the Administrative Agent
shall give prompt notice thereof to the Banks. The Administrative Agent shall
give each Bank prompt notice of each nonpayment of principal of or interest on
the Loans whether or not it has received any notice of the occurrence of such
nonpayment. The Administrative Agent shall (subject to Section 9.06) take such
action hereunder with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Banks.
SECTION 7.04. RIGHTS OF ADMINISTRATIVE AGENT AND ITS
AFFILIATES AS A BANK. With respect to the Loans made by the Administrative Agent
and any Affiliate of the Administrative Agent, Wachovia in its capacity as a
Bank hereunder and any Affiliate of the Administrative Agent or such Affiliate
in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though Wachovia
55
were not acting as the Administrative Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include Wachovia in its
individual capacity and any Affiliate of the Administrative Agent in its
individual capacity. The Administrative Agent and any Affiliate of the
Administrative Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of the Borrower's Affiliates) as if
Wachovia were not acting as the Administrative Agent, and the Administrative
Agent and any Affiliate of the Administrative Agent may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and the Administrative Agent) for
services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Banks.
SECTION 7.05. INDEMNIFICATION. Each Bank severally agrees to
indemnify the Administrative Agent, to the extent the Administrative Agent shall
not have been reimbursed by the Borrower, ratably in accordance with its
Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any other Loan Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby (excluding,
unless an Event of Default has occurred and is continuing, the normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or
any such other documents; provided that no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Administrative Agent. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the Administrative
Agent, be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT
SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON
OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE
ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent and the provisions of Section 9.08(c) have been satisfied. Any requests,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of that Note or of
any Note or Notes issued in exchange therefor or replacement thereof.
56
SECTION 7.08. NONRELIANCE ON ADMINISTRATIVE AGENT AND OTHER
BANKS. Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The
Administrative Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any other Person (or any of their Affiliates) which may come into
the possession of the Administrative Agent.
SECTION 7.09. FAILURE TO ACT. Except for action expressly
required of the Administrative Agent hereunder or under the other Loan
Documents, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Banks of their indemnification
obligations under Section 7.05 against any and all liability and expense which
may be incurred by the Administrative Agent by reason of taking, continuing to
take, or failing to take any such action.
SECTION 7.10. RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT.
Subject to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Borrower and the Administrative Agent may be
removed at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Administrative Agent, subject to the approval of the Borrower, so long
as no Default is in existence, which approval shall not be unreasonably withheld
or delayed. If no successor Administrative Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment within 30 days after
the retiring Administrative Agent's notice of resignation or the Required Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent,
subject to the approval of the Borrower, so long as no Default is in existence,
which approval shall not be unreasonably withheld or delayed. Any successor
Administrative Agent shall be a bank which has a combined capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Article VII
shall continue in effect for
57
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Administrative Agent hereunder.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE
OR UNFAIR. If on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered in the
relevant market for such Interest Period, or
(b) the Required Banks advise the Administrative Agent
that the London Interbank Offered Rate or IBOR, as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding its Fixed Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make such type of Fixed Rate Loans, or to permit
continuations or conversions into such type of Fixed Rate Loans, shall be
suspended. Unless the Borrower notifies the Administrative Agent at least 2
Domestic Business Days before the date of any Borrowing of such type of Fixed
Rate Loans for which a Notice of Borrowing has previously been given, or
continuation or conversion into such type of Fixed Rate Loans for which a Notice
of Continuation or Conversion has previously been given, that it elects not to
borrow or so continue or convert on such date, such Borrowing shall instead be
made as a Base Rate Borrowing, or such Fixed Rate Loan shall be converted to a
Base Rate Loan.
SECTION 8.02. ILLEGALITY. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any Authority, central bank or comparable agency
charged with the interpretation or administration thereof (any such agency being
referred to as an "Authority" and any such event being referred to as a "Change
of Law"), or compliance by any Bank (or its Lending Office) with any request or
directive (whether or not having the force of law) of any Authority shall make
it unlawful or impossible for any Bank (or its Lending Office) to make, maintain
or fund its Euro-Dollar Loans or Foreign Currency Loans and such Bank shall so
notify the Administrative Agent, the Administrative Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Bank to make or
permit continuations or conversions of Euro-Dollar Loans or Foreign Currency
Loans, as the case may be, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will
58
not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If
such Bank shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans or Foreign Currency Loans, as the case
may be, to maturity, and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each
Euro-Dollar Loan or Foreign Currency Loan, as the case may be, of such Bank,
together with accrued interest thereon and any amount due such Bank pursuant to
Section 8.05(a). Concurrently with prepaying each such Euro-Dollar Loan or
Foreign Currency Loan, as the case may be, the Borrower shall borrow a Base Rate
Loan in an equal principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
or Foreign Currency Loan, as the case may be, of the other Banks), and such Bank
shall make such a Base Rate Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN.
(a) If after the date hereof, a Change of Law or
compliance by any Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority:
(i) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement, including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding (A)
with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage and
(B) with respect to any Foreign Currency Loan any such
requirement included in the applicable Adjusted IBOR Rate)
against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending
Office) or on the United States market for certificates of
deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Notes, its obligation to
make Fixed Rate Loans and its issuance of, or participation
in, Letters of Credit;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan or issuing or
participating in Letters of Credit, or to reduce the amount of any sum received
or receivable by such Bank (or its Lending Office) under this Agreement or under
its Notes with respect thereto, by an amount reasonably deemed by such Bank to
be material, then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent) pursuant and subject to paragraph (c) below, the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any Authority, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which
59
such Bank could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's policies with respect to capital
adequacy) by an amount reasonably deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank pursuant and subject to
paragraph (c) below, the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Bank, be otherwise materially disadvantageous to
such Bank. A certificate of any Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to it hereunder,
and including the calculations thereof in reasonable detail, shall be conclusive
in the absence of manifest error, provided that such determination is made on a
reasonable basis. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 (i) shall be
applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee and (ii) shall
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
SECTION 8.04. BASE RATE LOANS OR OTHER FIXED RATE LOANS
SUBSTITUTED FOR AFFECTED FIXED RATE LOANS. If (i) the obligation of any Bank to
make or maintain any type of Fixed Rate Loans has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03, and
the Borrower shall, by at least 5 Euro-Dollar Business Days' or Foreign Currency
Business Days, as applicable, prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Bank
as, or permitted to be continued as or converted into, Euro-Dollar
Loans or Foreign Currency Loans, as the case may be, shall be instead
be made as or converted into (A) Base Rate Loans, (B) if such
suspension or demand for compensation relates to Euro-Dollar Loans, but
not Foreign Currency Loans, as Foreign Currency Loans, and (C) if such
demand for compensation relates to Foreign Currency Loans, but not
Euro-Dollar Loans, as Euro-Dollar Loans, as the Borrower may elect in
the notice to such Bank through the Administrative Agent referred to
hereinabove (in all cases interest and principal on such Loans shall be
payable contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of its Euro-Dollar Loans or Foreign
Currency Loans, as the case may be, has been repaid, all payments of
principal which would otherwise be applied to repay such Fixed Rate
Loans shall be applied to repay its Base Rate Loans instead.
60
SECTION 8.05. COMPENSATION. Upon the request of any Bank,
delivered to the Borrower and the Administrative Agent, the Borrower shall pay
to such Bank such amount or amounts as shall compensate such Bank for any loss,
cost or expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.11,
2.13, 6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other
than the last day of an Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Fixed Rate
Loan on the date for such prepayment specified in the relevant notice
of prepayment hereunder; or
(c) any failure by the Borrower to borrow a Fixed Rate
Loan on the date for the Fixed Rate Borrowing of which such Fixed Rate
Loan is a part specified in the applicable Notice of Borrowing
delivered pursuant to Section 2.02 or notification of acceptance of a
Transaction Rate Quote pursuant to Section 2.01(b)(ii); or
(d) any failure by the Borrower to pay a Foreign Currency
Loan in the applicable Foreign Currency;
such compensation to include, without limitation, as applicable, (A) an amount
equal to the excess, if any, of (x) the amount of interest which would have
accrued on the amount so paid or prepaid or not prepaid or borrowed for the
period from the date of such payment, prepayment or failure to prepay or borrow
to the last day of the then current Interest Period for such Fixed Rate Loan
(or, in the case of a failure to prepay or borrow, the Interest Period for such
Fixed Rate Loan which would have commenced on the date of such failure to prepay
or borrow) at the applicable rate of interest for such Fixed Rate Loan provided
for herein over (y) the amount of interest (as reasonably determined by such
Bank) such Bank would have paid on (i) deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading banks in the
London interbank market (if such Loan is a Euro-Dollar Loan) or (ii) any deposit
in a Foreign Currency of comparable amounts having terms comparable to such
period placed with it by lending banks in the applicable interbank market for
such Foreign Currency (if such Fixed Rate Loan is a Foreign Currency Loan); or
(B) any such loss, cost or expense incurred by such Bank in liquidating or
closing out any foreign currency contract undertaken by such Bank in funding or
maintaining such Fixed Rate Loan (if such Fixed Rate Loan is a Foreign Currency
Loan).
SECTION 8.06. FAILURE TO PAY IN FOREIGN CURRENCY. If any
Borrower is unable for any reason to effect payment in a Foreign Currency as
required by this Agreement or if any Borrower shall default in the Foreign
Currency, each Bank may, through the Administrative Agent, require such payment
to be made in Dollars in the Dollar Equivalent amount of such payment. In any
case in which any Borrower shall make such payment in Dollars, the Borrower
agrees to hold the Banks harmless from any loss incurred by the Banks arising
from any change in the value of Dollars in relation to such Foreign Currency
between the date such payment became due and the date of payment thereof.
61
SECTION 8.07. JUDGMENT CURRENCY. If for the purpose of
obtaining judgment in any court or enforcing any such judgment it is necessary
to convert any amount due in any Foreign Currency into any other currency, the
rate of exchange used shall be the Administrative Agent's spot rate of exchange
for the purchase of the Foreign Currency with such other currency at the close
of business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Borrower in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency other
than the relevant Foreign Currency the Administrative Agent is able (in
accordance with normal banking procedures) to purchase the relevant Foreign
Currency with such other currency. If the amount of the relevant Foreign
Currency that the Administrative Agent is able to purchase with such other
currency is less than the amount due in the relevant Foreign Currency,
notwithstanding any judgment or order, the Borrower shall indemnify the Banks
for the shortfall.
SECTION 8.08. REPLACEMENT OF BANKS. If any Bank (a "Notice
Bank") makes demand for amounts owed under Section 8.03 (other than due to any
change in the Eurodollar Reserve Percentage), or gives notice under Section 8.02
that it can no longer participate in Euro-Dollar Loans, then in each case the
Borrower shall have the right, if no Default or Event of Default exists, and
subject to the terms and conditions set forth in Section 9.08(c), to designate
an assignee (a "Replacement Bank") to purchase the Notice Bank's share of
outstanding Syndicated Loans and all other obligations hereunder and to assume
the Notice Bank's obligations to the Borrower under this Agreement; provided,
that, any Replacement Bank must be reasonably acceptable to the Administrative
Agent and the Required Banks (and, in any event, may not be an Affiliate of the
Borrower). Subject to the foregoing, the Notice Bank agrees to assign without
recourse to the Replacement Bank its share of outstanding Syndicated Loans and
its Commitment, and to delegate to the Replacement Bank its obligations to the
Borrower under this Agreement and its future obligations to the Administrative
Agent under this Agreement. Upon such sale and delegation by the Notice Bank and
the purchase and assumption by the Replacement Bank, and compliance with the
provisions of Section 9.08(c), the Notice Bank shall cease to be a "Bank"
hereunder and the Replacement Bank shall become a "Bank" under this Agreement;
provided, however, that any Notice Bank shall continue to be entitled to the
indemnification provisions contained elsewhere herein.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopier number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this
62
Section and the confirmation is received, (ii) if given by mail, 3 Domestic
Business Days after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent under Article II or Article VIII shall not
be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by the
Administrative Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note or other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES. The Borrower shall
pay (i) all out-of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the Banks and the
Administrative Agent, in connection with the preparation of this Agreement and
the other Loan Documents, any waiver or consent hereunder or thereunder or any
amendment hereof or thereof or any Default or alleged Default hereunder or
thereunder and (ii) if a Default occurs, all out-of-pocket expenses incurred by
the Administrative Agent and the Banks, including reasonable fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents
against the Borrower. The Borrower shall indemnify the Administrative Agent and
each Bank against any transfer taxes, documentary taxes, assessments or charges
made by any Authority by reason of the execution and delivery of this Agreement
or the other Loan Documents by the Borrower.
SECTION 9.04. INDEMNIFICATION. The Borrower shall indemnify
the Administrative Agent, the Banks and each Affiliate thereof and their
respective directors, officers, employees and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims or damages to which
any of them may become subject, insofar as such losses, liabilities, claims or
damages arise out of or result from any actual or proposed use by the Borrower
of the proceeds of any extension of credit by any Bank hereunder or breach by
the Borrower of this Agreement or any other Loan Document or from any
investigation, litigation (including, without limitation, any actions taken by
the Administrative Agent or any of the Banks to enforce this Agreement or any of
the other Loan Documents) or other proceeding (including, without limitation,
any threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Administrative Agent and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified. If
any cause of action, suit, proceeding or claim arising from any of the foregoing
is brought against any Indemnified Person, whether such action, proceeding, suit
or claim shall be actual or threatened, or in preparation therefor, the Borrower
will have the right, at its expense, to assume the resistance and defense of
such cause of action, suit, proceeding or claim or cause the same to be resisted
and defended; provided that such Indemnified Person shall be entitled (but not
63
obligated) to participate jointly in such defense, in which case such
Indemnified Person will be responsible for its own legal fees or other expenses,
if any, related to such defense incurred subsequent to the joint participation
by such party in such defense. Notwithstanding the foregoing, if any Indemnified
Person shall have been advised by counsel chosen by it that there may be one or
more legal defenses available to such Indemnified Person that are materially
different from or additional to those available to the Borrowers, the
Indemnified Person may assume the defense of such action with respect to such
different or additional defenses and the Borrower agrees to reimburse such
Indemnified Person for the reasonable fees and expenses of any counsel retained
by the Indemnified Person.
SECTION 9.05. SETOFF; SHARING OF SETOFFS.
(a) The Borrower hereby grants to the Administrative
Agent and each Bank and to Wachovia as to the Swing Loan Note, a lien for all
indebtedness and obligations owing to them from the Borrower upon all deposits
or deposit accounts, of any kind (other than trust and escrow accounts not
established for the benefit of the Administrative Agent and the Banks), or any
interest in any deposits or deposit accounts thereof, now or hereafter pledged,
mortgaged, transferred or assigned to the Administrative Agent or any such Bank
or otherwise in the possession or control of the Administrative Agent or any
such Bank for any purpose for the account or benefit of the Borrower and
including any balance of any deposit account or of any credit of the Borrower
with the Administrative Agent or any such Bank, whether now existing or
hereafter established hereby authorizing the Administrative Agent and each Bank
at any time or times (upon at least 2 Domestic Business Days' prior notice, if
no Event of Default is in existence) to apply such balances or any part thereof
to such of the indebtedness and obligations owing by the Borrower to the Banks
and/or the Administrative Agent then past due and in such amounts as they may
elect, and whether or not the collateral, if any, or the responsibility of other
Persons primarily, secondarily or otherwise liable may be deemed adequate. For
the purposes of this paragraph, all remittances and property shall be deemed to
be in the possession of the Administrative Agent or any such Bank as soon as the
same may be put in transit to it by mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any
right of setoff or counterclaim or resort to collateral security or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest owing with respect to the Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the
64
proportion of (x) the amount of such other Bank's required repayment to (y) the
total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in a Note, whether or
not acquired pursuant to the foregoing arrangements, may exercise rights of
setoff or counterclaim and other rights with respect to such participation as
fully as if such holder of a participation were a direct creditor of the
Borrower in the amount of such participation.
SECTION 9.06. AMENDMENTS AND WAIVERS.
(a) Any provision of this Agreement, the Notes or any
other Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Banks (and,
if the rights or duties of the Administrative Agent or the Issuing Bank are
affected thereby, by the Administrative Agent or the Issuing Bank, as the case
may be); provided that, no such amendment or waiver shall, unless signed by all
Banks, (i) change the Commitment of any Bank or subject any Bank to any
additional obligation, (ii) reduce the principal of or the rate of interest on
any Loan or any fees (other than fees payable to the Administrative Agent)
hereunder (except that the Applicable Margin may be reduced upon the
consummation of an issuance of High-Yield Notes as described in Section 5.17(n)
to a pricing grid whereon the lowest level is no lower than, for any Base Rate
Loan, 1.50%, and for any Euro-Dollar Loan or Foreign Currency Loan, 2.00%, with
the written consent of the Required Banks), (iii) change the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder, (iv)
reduce the amount of principal, interest or fees due on any date fixed for the
payment thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the percentage of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (vi) change the manner of
application of any payments made under this Agreement or the Notes, (vii)
release or substitute all or any substantial part of the collateral (if any)
held as security for the Loans (for the avoidance of doubt not including any
release of Collateral disposed of in a transaction permitted by this Agreement)
or (viii) release any Guarantee given to support payment of the Loans.
(b) The Borrower will not solicit, request or negotiate
for or with respect to any proposed waiver or amendment of any of the provisions
of this Agreement other than through the Administrative Agent, unless each Bank
shall be informed thereof by the Borrower and shall be afforded an opportunity
of considering the same and shall be supplied by the Borrower with sufficient
information to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any waiver or consent effected pursuant
to the provisions of this Agreement shall be delivered by the Administrative
Agent to each Bank forthwith following the date on which the same shall have
been executed and delivered by the requisite percentage of Banks. The Borrower
will not, directly or indirectly, pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or otherwise, to any
Bank (in its capacity as such) as consideration for or as an inducement to the
entering into by such Bank of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently paid, on
the same terms, ratably to all such Banks.
65
SECTION 9.07. NO MARGIN STOCK COLLATERAL. Each of the Banks
represents to the Administrative Agent and each of the other Banks that it in
good faith is not, directly or indirectly (by negative pledge or otherwise),
relying upon any Margin Stock as collateral in the extension or maintenance of
the credit provided for in this Agreement.
SECTION 9.08. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons
(each a "Participant") participating interests in any Loan owing to such Bank,
any Note held by such Bank, any Commitment hereunder or any other interest of
such Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related loan
or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Loans, or (vi) the release of any Guarantee given to support
payment of the Loans. Each Bank selling a participating interest in any Loan,
Note, Commitment or other interest under this Agreement, other than a
participating interest therein, shall, within 10 Domestic Business Days of such
sale, provide the Borrower and the Administrative Agent with written
notification stating that such sale has occurred and identifying the Participant
and the interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect to
its participation in Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks
or financial institutions (each an "Assignee") all or, in the case of its
Syndicated Loans and Commitments, a proportionate part of all its Syndicated
Loans and Commitments, and of its rights and obligations under this Agreement,
the Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance, executed by
such Assignee, such transferor Bank and the Administrative Agent (and, in the
case of an Assignee that is not then a Bank or an Affiliate or Related Fund of a
Bank), subject to clause (iii) below, by the Borrower; provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Bank's Commitment, (ii) if a Bank is assigning only a portion of its Commitment,
then, the amount of
66
the Commitment being assigned (determined as of the effective date of the
assignment) shall be in an amount not less than $5,000,000 (except that there
shall be no such minimum if the assignment is to any Bank or any Affiliate or
Related Fund of any Bank), and (iii) except during the continuance of a Default,
no interest may be sold by a Bank pursuant to this paragraph (c) to any Assignee
that is not then a Bank or an Affiliate or Related Fund of a Bank without the
consent of the Borrower and the Administrative Agent, which consent shall not be
unreasonably withheld. Upon (A) execution of the Assignment and Acceptance by
such transferor Bank, such Assignee, the Administrative Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance to the Borrower and the Administrative Agent, (C) payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and (D) payment of a processing
and recordation fee to the Administrative Agent of (1) if such Assignee is a
Bank or an Affiliate or Related Fund of a Bank, $1,000, and (2) for any other
Assignee, $3,500, such Assignee shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank under this
Agreement to the same extent as if it were an original party hereto with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by the Borrower, the Banks or the
Administrative Agent shall be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the transferor Bank, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to each of such Assignee and such
transferor Bank.
(d) Subject to the provisions of Section 9.09, the
Borrower authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any
greater payment under Section 2.13(d) or Section 8.03 than the transferor Bank
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
67
SECTION 9.09. CONFIDENTIALITY. Each Bank agrees to exercise
commercially reasonable efforts to keep any financial information pertaining to
the Borrower and its Affiliates and any other information delivered or made
available by the Borrower to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
prevent any Bank from disclosing such information (i) to any other Bank, (ii)
upon the order of any court or administrative agency, (iii) upon the request or
demand of any regulatory agency or authority having jurisdiction over such Bank,
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Bank's legal counsel and independent auditors, and (viii) to any actual or
proposed Participant, Assignee or other Transferee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 9.09; provided, that should disclosure of any such confidential
information be required by virtue of clause (ii) of the immediately preceding
sentence, to the extent permitted by law, any relevant Bank shall promptly
notify the Borrower of same so as to allow the Borrower to seek a protective
order or to take any other appropriate action; provided, further, that, no Bank
shall be required to delay compliance with any directive to disclose any such
information so as to allow the Borrower to effect any such action.
SECTION 9.10. REPRESENTATION BY BANKS. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided
that, subject to Section 9.08, the disposition of the Note or Notes held by that
Bank shall at all times be within its exclusive control.
SECTION 9.11. OBLIGATIONS SEVERAL. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. GEORGIA LAW. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13. SEVERABILITY. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. INTEREST. In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or collected
pursuant to this Agreement, the Notes or the
68
other Loan Documents and deemed to be interest under applicable law
(collectively, "Interest") exceed the highest rate of interest allowed by
applicable law (the "Maximum Rate"), and in the event any such payment is
inadvertently received by any Bank, then the excess sum (the "Excess") shall be
credited as a payment of principal, unless the Borrower shall notify such Bank
in writing that it elects to have the Excess returned forthwith. It is the
express intent hereof that the Borrower not pay and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under applicable law. The right to
accelerate maturity of any of the Loans does not include the right to accelerate
any interest that has not otherwise accrued on the date of such acceleration,
and the Administrative Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the
Administrative Agent or the Banks hereunder or under any of the Notes or the
other Loan Documents, whether at maturity or by prepayment, shall be subject to
rebate of unearned interest as and to the extent required by applicable law. By
the execution of this Agreement, the Borrower covenants, to the fullest extent
permitted by law, that (i) the credit or return of any Excess shall constitute
the acceptance by the Borrower of such Excess, and (ii) the Borrower shall not
seek or pursue any other remedy, legal or equitable, against the Administrative
Agent or any Bank, based in whole or in part upon contracting for charging or
receiving any Interest in excess of the Maximum Rate. For the purpose of
determining whether or not any Excess has been contracted for, charged or
received by the Administrative Agent or any Bank, all interest at any time
contracted for, charged or received from the Borrower in connection with this
Agreement, the Notes or any of the other Loan Documents shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Commitments. The Borrower, the
Administrative Agent and each Bank shall, to the maximum extent permitted under
applicable law, (i) characterize any non-principal payment as an expense, fee or
premium rather than as Interest and (ii) exclude voluntary prepayments and the
effects thereof. The provisions of this Section shall be deemed to be
incorporated into each Note and each of the other Loan Documents (whether or not
any provision of this Section is referred to therein). All such Loan Documents
and communications relating to any Interest owed by the Borrower and all figures
set forth therein shall, for the sole purpose of computing the extent of
obligations hereunder and under the Notes and the other Loan Documents be
automatically recomputed by the Borrower, and by any court considering the same,
to give effect to the adjustments or credits required by this Section.
SECTION 9.15. INTERPRETATION. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION.
To the fullest extent permitted by law, the Borrower (a) and each of the Banks
and the Administrative Agent irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of this Agreement, any of the other
Loan Documents, or any of the transactions contemplated hereby or thereby, (b)
submits to the nonexclusive personal jurisdiction in the State of Georgia, the
courts thereof and the United States District Courts sitting therein, for the
enforcement of this Agreement, the Notes and the other Loan Documents, (c)
waives any and all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation,
69
inconvenience of forum) to jurisdiction or venue within the State of Georgia for
the purpose of litigation to enforce this Agreement, the Notes or the other Loan
Documents, and (d) agrees that service of process may be made upon it in the
manner prescribed in Section 9.01 for the giving of notice to the Borrower.
Nothing herein contained, however, shall prevent the Administrative Agent from
bringing any action or exercising any rights against any security and against
the Borrower personally, and against any assets of the Borrower, within any
other state or jurisdiction.
SECTION 9.17. COUNTERPARTS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. SOURCE OF FUNDS -- ERISA. Each of the Banks
hereby severally (and not jointly) represents to the Borrower that no part of
the funds to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section, the
terms "employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
SECTION 9.19. EUROPEAN ECONOMIC AND MONETARY UNION. (a) In
this Section 9.19 and in each other provision of this Agreement to which
reference is made in this Section 9.19 expressly or impliedly, the following
terms have the meanings given to them in this Section 9.19
"commencement of the third stage of EMU" means January 1,
1999.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of the euro.
"euro" means the single currency of the participating member
states as of the date, for each such participating member state, such
participating member state's national currency unit shall be substituted by the
euro.
"euro unit" means the currency unit of the euro.
"national currency unit" means the unit of currency of a
participating member state, as defined on the day before the commencement of the
third stage of EMU.
"participating member state" means each state so described in
any EMU legislation, and in particular, as of the commencement of the third
stage of EMU, Belgium, Germany, Spain, France, Ireland, Italy, Luxembourg,
Netherlands, Austria, Portugal and Finland.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at
70
Maastricht on February 7, 1992, and came into force on November 1, 1993), as
amended from time to time.
(b) The provisions of paragraphs (c) to (j) below
(inclusive) shall be effective at and from the commencement of the third stage
of EMU, provided, that if and to the extent that any such provision relates to
any state (or the currency of such state) that is not a participating member
state on the commencement of the third stage of EMU, such provisions shall
become effective in relation to such state (and the currency of such state) at
and from the date on which such state becomes a participating member state.
(c) Each obligation under this Agreement of a party to
this Agreement which has been denominated in the national currency unit of a
participating member state shall be redenominated into the euro unit in
accordance with EMU legislation.
(d) Any Foreign Currency Loan in the currency of a
participating member state shall be made in the euro unit.
(e) With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a "Foreign
Currency Business Day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in
(i) Atlanta, Georgia, London and New York City;
and
(ii) Frankfurt am Main, Germany or any other
financial center relating to the relevant national currency
unit (or such principal financial center or centers in such
participating member state or states as the Administrative
Agent may from time to time nominate for this purpose).
(f) Sections 2.02(c) and 2.12(a) shall be construed so
that, in relation to the payment of any amount of euro units, such amount shall
be made available to the Administrative Agent in immediately, freely
transferable, cleared funds to such account with such bank in Frankfurt am Main,
Germany (or such other principal financial center in such participating member
state as the Administrative Agent may from time to time nominate for this
purpose) as the Administrative Agent shall from time to time nominate for this
purpose.
(g) Any amount payable by the Administrative Agent to the
Banks under this Agreement in the currency of a participating member state shall
be paid in the euro unit.
(h) With respect to the payment of any amount denominated
in the euro, the Administrative Agent shall not be liable to the Borrower or any
of the Banks in any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount required by this Agreement
to be paid by the Administrative Agent if the Administrative Agent shall have
taken all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in the euro unit) to the account with the bank in the principal financial
center in the participating member state which the Borrower or, as the case may
be, any Bank shall have specified for such purpose. In this paragraph (h), "all
relevant steps" means all such steps as
71
may be prescribed from time to time by the regulations or operating procedures
of such clearing or settlement system as the Administrative Agent may from time
to time determine for the purpose of clearing or settling payments of the euro.
(i) If the basis of accrual of interest or fees expressed
in this Agreement with respect to the currency of any state that becomes a
participating member state shall be inconsistent with any convention or practice
in the London interbank market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such state becomes a
participating member state; provided, that if any Foreign Currency Loan in the
currency of such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Foreign Currency Loan, at
the end of the then current Interest Period.
(j) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU legislation and without prejudice
to the respective liabilities for indebtedness of the Borrower to the Banks and
the Banks to the Borrower under or pursuant to this Agreement:
(i) each reference in this Agreement to a
minimum amount (or an integral multiple thereof) in a
national currency unit to be paid to or by the Administrative
Agent shall be replaced by a reference to such reasonably
comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from
time to time specify; and
(ii) except as expressly provided in this Section
9.19, each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative
Agent may from time to time specify to be necessary or
appropriate to reflect the introduction of or changeover to
the euro in participating member states.
(k) The Borrower shall from time to time, at the request
of the Administrative Agent, pay to the Administrative Agent for the account of
each Bank the amount of any cost or increased cost incurred by, or of any
reduction in amount payable to or in the effective return on its capital to, or
of interest or other return forgone by, such Bank or any holding company of such
Bank as a result of the introduction of, changeover to or operation of the euro
in any participating member state.
SECTION 9.20. [RESERVED].
SECTION 9.21. EXISTING CREDIT AGREEMENT; EFFECTIVENESS OF
AMENDMENT AND RESTATEMENT. Until this Agreement becomes effective upon the
satisfaction of the conditions contained in Section 3.01, the Existing Credit
Agreement shall remain in full force and effect and shall not be affected
hereby. After the Restatement Effective Date, all obligations of the Borrower
under the Existing Credit Agreement shall become obligations of the Borrower
hereunder, secured by the Security Documents in accordance with their terms.
[Signatures are contained on the following pages.]
72
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
RUSSELL CORPORATION (SEAL)
By:
-------------------------------------
Robert D. Martin
Senior Vice President
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
RUSSELL EUROPE LIMITED (SEAL)
By:
-------------------------------------
Name:
Title:
Russell Europe Limited
c/o Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
COMMITMENTS WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank (SEAL)
$56,200,000(1) By:
----------------------------------------------
Title:
Lending Office
Wachovia Bank, N.A.
NC0760
301 South College Street
Charlotte, NC 28288-0760
Attention: Roger Pelz, Senior Vice President
Telecopier: (704) 374-6319
Confirmation: (704) 374-6060
- ---------------
(1) Plus the commitment to fund 100% of the Foreign Currency Loans which
otherwise would be allocated to Aliant Bank, as provided in Section 2.01(a).
$48,000,000 SUNTRUST BANK (formerly Suntrust Bank, Atlanta),
as Syndication Agent and as a Bank (SEAL)
By:
-----------------------------------------
Title:
Lending Office
SunTrust Bank
303 Peachtree Street, 3rd Floor
Atlanta, Georgia 30308
Attention: Laura Kahn
Telecopier No. (404) 575-2594
Confirmation No. (404) 588-7705
$48,000,000 FIRST UNION NATIONAL BANK,
as Documentation Agent, Issuing Bank and as
a Bank (SEAL)
By:
-------------------------------------------
Title:
Lending Office
First Union National Bank
NC0760
301 South College Street
Charlotte, NC 28288-0760
Attention: Roger Pelz, Senior Vice President
Telecopier: (704) 374-6319
Confirmation: (704) 374-6060
$48,000,000 AMSOUTH BANK, as a Bank (SEAL)
By:
----------------------------------------
Title:
Lending Office
AmSouth Bank
AmSouth Sonat Tower, 7th Floor
1900 Fifth Avenue North
Birmingham, AL 35203
Attention: Large Corporate
Telecopier No.: (205) 571-7578
Confirmation No.: (205) 583-4522
$25,000,000 JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank), as a Bank (SEAL)
By:
------------------------------------------
Title:
Lending Office
JPMorgan Chase Bank
1411 Broadway, 5th Floor
New York, New York 10018
Attention: James A. Knight
Telecopier No. (212) 391-2102
Confirmation No. (212) 391-7679
$4,800,000 ALIANT BANK (SEAL)
By:
------------------------------------------
Title:
Lending Office
Aliant Bank
1100 Corporate Parkway
P.O. Box 383067
Birmingham, Alabama 35238
Attention: John J. Thomas
Telecopier No. (205) 408-2001
Confirmation No. (201) 408-2003
$20,000,000 COMERICA BANK (SEAL)
By:
------------------------------------------
Title:
Lending Office
Comerica Bank
500 Woodward Avenue
Mail Code 3280
Detroit, MI 48226
Attention: Danielle Butler
Telecopier No.: (313) 222-3330
Confirmation No.: (313) 222-6122
TOTAL COMMITMENTS
$250,000,000
EXHIBIT A-1
SYNDICATED DOLLAR LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, RUSSELL CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of
_______________________________________ ____________, a ____________________
(the "Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($__________), or such
lesser amount as shall equal the aggregate unpaid principal amount of all
Syndicated Dollar Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided for
Syndicated Dollar Loans in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Syndicated Dollar Loan Note on
the dates and at the rate or rates provided for in the Credit Agreement.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Wachovia Bank,
N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such other
address as may be specified from time to time pursuant to the Credit Agreement.
All Syndicated Dollar Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Syndicated Dollar Loan Note is one of the Syndicated
Dollar Loan Notes referred to in the Credit Agreement dated as of October 15,
1999 among Russell Corporation, Russell Europe Limited, the Banks listed on the
signature pages thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust
Bank, Atlanta, as Syndication Agent and First Union National Bank, as
Documentation Agent (as the same may be amended and modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the optional and mandatory prepayment and the repayment hereof and the
acceleration of the maturity hereof, as well as the obligation of the Borrower
to pay all costs of collection, including reasonable attorneys fees, in the
event this Syndicated Dollar Loan Note is collected by law or through an
attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Dollar Loan Note to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
RUSSELL CORPORATION (SEAL)
By:
-------------------------------------
Eric N. Hoyle
Executive Vice President and Chief
Financial Officer
Syndicated Dollar Loan Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
DATE BASE RATE OR AMOUNT PRINCIPAL REPAID MATURITY DATE NOTATION
EURO DOLLAR LOAN OF LOAN MADE BY
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
EXHIBIT A-2
[RESERVED]
EXHIBIT A-3
SWING LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, RUSSELL CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of WACHOVIA BANK,
N.A., a national banking association (the "Bank"), for the account of its
Lending Office, the principal sum of Fifteen Million and No/100 Dollars
($15,000,000), or such lesser amount as shall equal the aggregate unpaid
principal amount of all Swing Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below, on the dates and in the amounts provided
in the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Swing Loan Note at the rate or rates provided for Base
Rate Loans or Transaction Rate Loans, as the case may be, on the dates provided
for in the Credit Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof shall
bear interest at the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Wachovia Bank of Georgia, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303-1757, or such other address as may be specified from time to time pursuant
to the Credit Agreement.
All Swing Loans made by the Bank, the respective maturities
thereof, and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Swing Loan Note is the Swing Loan Note referred to in the
Credit Agreement dated as of even date herewith among Russell Corporation,
Russell Europe Limited, the Banks listed on the signature pages thereof,
Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta, as
Syndication Agent and First Union National Bank, as Documentation Agent (as the
same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Swing Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
RUSSELL CORPORATION (SEAL)
By:
-------------------------------------
Eric N. Hoyle
Executive Vice President and Chief
Financial Officer
Swing Loan Note (cont'd)
- ----------------------------------------------------------------------------------------------
AMOUNT AMOUNT OF MATURITY NOTATION
DATE OF LOAN PRINCIPAL REPAID DATE MADE BY
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
EXHIBIT A-4
FOREIGN CURRENCY LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, RUSSELL CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of
____________________________________, a ____________________ (the "Bank"), for
the account of its Lending Office, the aggregate unpaid principal amount of all
Foreign Currency Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for Foreign
Currency Loans in the Credit Agreement. Interest on any overdue principal of
and, to the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the applicable Foreign Currency in immediately available funds at the
office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303-1757, or such other address as may be specified from time to time pursuant
to the Credit Agreement.
All Foreign Currency Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Note is one of the Foreign Currency Loan Notes referred
to in the Credit Agreement dated as of October 15, 1999, among Russell
Corporation, Russell Europe Limited, the Banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta,
as Syndication Agent and First Union National Bank, as Documentation Agent (as
the same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof, as well as the obligation of the Borrower to pay all costs of
collection, including reasonable attorneys fees, in the event this Foreign
Currency Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Foreign
Currency Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
RUSSELL CORPORATION (SEAL)
By:
--------------------------------
Eric N. Hoyle
Executive Vice President and Chief
Financial Officer
Foreign Currency Loan Note (cont'd)
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ____________
DATED October 15, 1999
PRINCIPAL MATURITY OF
DATE AMOUNT OF LOAN INTEREST PRINCIPAL UNPAID
AND CURRENCY PERIOD AMOUNT PAID BALANCE
- -------------------------------------------------------------------------------------------------------------------
EXHIBIT A-5
FOREIGN CURRENCY LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, RUSSELL EUROPE LIMITED, a United Kingdom
corporation (the "Borrower"), promises to pay to the order of
_____________________ ______________, a ____________________ (the "Bank"), for
the account of its Lending Office, the aggregate unpaid principal amount of all
Foreign Currency Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for Foreign
Currency Loans in the Credit Agreement. Interest on any overdue principal of
and, to the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the applicable Foreign Currency in immediately available funds at the
office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303-1757, or such other address as may be specified from time to time pursuant
to the Credit Agreement.
All Foreign Currency Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Note is one of the Foreign Currency Loan Notes referred
to in the Credit Agreement dated as of October 15, 1999 among Russell
Corporation, Russell Europe Limited, the Banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta,
as Syndication Agent and First Union National Bank, as Documentation Agent (as
the same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof, as well as the obligation of the Borrower to pay all costs of
collection, including reasonable attorneys fees, in the event this Foreign
Currency Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Foreign
Currency Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
RUSSELL EUROPE LIMITED (SEAL)
By:
-------------------------------
Title
Foreign Currency Loan Note (cont'd)
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF__________________________
DATED October 15, 1999
PRINCIPAL MATURITY OF
DATE AMOUNT OF LOAN INTEREST PRINCIPAL UNPAID
AND CURRENCY PERIOD AMOUNT PAID BALANCE
- -----------------------------------------------------------------------------------------------------
EXHIBIT B
[RESERVED]
EXHIBIT C
[RESERVED]
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated ________________ ___, 20____
Reference is made to the Amended and Restated Credit Agreement
dated as of January 31, 2002 (together with all amendments and modifications
thereto, the "Credit Agreement") among Russell Corporation, an Alabama
corporation (the "Borrower"), Russell Europe Limited, the Banks (as defined in
the Credit Agreement), Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), Suntrust Bank (formerly Suntrust Bank, Atlanta), as
Syndication Agent and First Union National Bank, as Documentation Agent). Terms
defined in the Credit Agreement are used herein with the same meaning.
________________________________________________________ (the
"Assignor") and _________________________________________ (the "Assignee") agree
as follows:
The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a _______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a _______% interest (which on the
Effective Date hereof is $__________) in the Assignor's Commitment and a
________ interest (which on the Effective Date hereof is $___________________)
in the Syndicated Loans [and Swing Loans] owing to the Assignor and a ____%
interest in the Notes held by the Assignor (which on the Effective Date hereof
is $__________).
The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated Loans
[and Swing Loans] owing to it (without giving effect to assignments thereof
which have not yet become effective) is $___________________; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iii) attaches the Notes
referred to in paragraph 1 above and requests that the Administrative Agent
exchange such Notes for new Notes as follows each dated the Effective Date: [a
Syndicated Dollar Loan Note in the principal amount of $________________ and a
new Foreign Currency Loan Note, each payable to the order of the Assignor,] a
Syndicated Dollar Loan Note in the principal amount of $_______________ and a
new Foreign Currency Loan Note, each payable to the order of the Assignee [and a
Swing Loan Note payable to the order of the Assignee].
The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that it
is a bank or financial institution; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank; (vi) specifies as its Lending Office
(and address for notices) the office set forth beneath its name on the signature
pages hereof, (vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its corporate powers
and have been duly authorized by all necessary corporate action, (viii) makes
the representation and warranty contained in Section 9.18 of the Credit
Agreement[, and (ix) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for purposes
of determining exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement and the Notes
or such other documents as are necessary to indicate that all such payments are
subject to such taxes at a rate reduced by an applicable tax treaty].
The Effective Date for this Assignment and Acceptance shall be
_______________, _____(the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent and to the Borrower for
execution by the Borrower.
Upon such execution and acceptance by the Administrative Agent
[and execution by the Borrower] [If required by the Credit Agreement], from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent rights and obligations have been transferred to it
by this Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent its rights and obligations
have been transferred to the Assignee by this Assignment and Acceptance,
relinquish its rights (other than under Sections 8.03, 9.03 and 9.04 of the
Credit Agreement) and be released from its obligations under the Credit
Agreement.
Upon such execution and acceptance by the Administrative Agent
[and execution by the Borrower] [If required by the Credit Agreement], from and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the interest assigned hereby to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments for periods prior to
such acceptance by the Administrative Agent directly between themselves.
This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
----------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
----------------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Administrative Agent
By:
----------------------------------------
Title:
RUSSELL CORPORATION
If required by the Credit Agreement
By:
----------------------------------------
Title:
EXHIBIT E-1
NOTICE OF BORROWING
----------------- ----, -----
Wachovia Bank, N.A., as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Amended and Restated Credit Agreement (as amended and
modified from time to time, the "Credit Agreement")
dated as of January 31, 2002 by and among Russell
Corporation and Russell Europe Limited, as Borrower,
the Banks from time to time parties thereto, Wachovia
Bank, N.A., as Administrative Agent, Suntrust Bank
(formerly Suntrust Bank, Atlanta), as Syndication
Agent and First Union National Bank, as Documentation
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to
Section 2.02 of the Credit Agreement.
[The Borrower] [Russell Europe Limited], as the Borrower with
respect to Foreign Currency Borrowings]] hereby requests a [Euro-Dollar
Borrowing] [Base Rate Borrowing] [Foreign Currency Borrowing] [Swing Loan
Borrowing] in the aggregate principal amount of [the Dollar Equivalent of]
$__________ to be made on ______________, ______, and for interest to accrue
thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans]
[Base Rate Loans] [Foreign Currency Loans]. [The duration of the Interest Period
with respect thereto shall be [1 month] [2 months] [3 months] [6 months]].
The Borrower has caused this Notice of Borrowing to be
executed and delivered by its duly authorized officer this _________ day of
______________, ______.
RUSSELL CORPORATION
[AS AGENT FOR RUSSELL EUROPE LIMITED]
[ADD IF APPROPRIATE]
By:
-------------------------------------
Title:
EXHIBIT E-2
NOTICE OF CONTINUATION OR CONVERSION
---------------------, ------
Wachovia Bank, N.A., as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Amended and Restated Credit Agreement (as amended and
modified from time to time, the "Credit Agreement")
dated as of January 31, 2002, by and among Russell
Corporation, Russell Europe Limited, the Banks from
time to time parties thereto, Wachovia Bank, N.A., as
Administrative Agent, Suntrust Bank (formerly
Suntrust Bank, Atlanta), as Syndication Agent and
First Union National Bank, as Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Continuation or Conversion is delivered to you
pursuant to Section 2.04 of the Credit Agreement.
With respect to the [Euro-Dollar Loans] [Foreign Currency
Loans denominated in [specify Foreign Currency]] in the aggregate amount of [the
Dollar Equivalent of] $___________ which has an Interest Period ending on
_____________, [the Borrower] [Russell Europe Limited, as the Borrower with
respect to Foreign Currency Borrowings]] hereby requests that such loan be
[converted to a] [Base Rate Loan] [Euro-Dollar Loan] [continued as a]
[Euro-Dollar Loan] [Foreign Currency Loan in the same Foreign Currency]1 in the
aggregate principal amount of [the Dollar Equivalent of] $__________ to be made
on such date, and for interest to accrue thereon at the rate established by the
Credit Agreement for [Base Rate Loans] [Euro-Dollar Loans] [Foreign Currency
Loans]. [The duration of the Interest Period with respect thereto shall be [1
month] [2 months] [3 months] [6 months]].
- -------------------
(1) Note: Foreign Currency Loans may only be continued in the same Foreign
Currency, and may not be converted to any other type of Loan.
The Borrower has caused this Notice of Continuation or
Conversion to be executed and delivered by its duly authorized officer this
______ day of ____________, _____.
RUSSELL CORPORATION
[as agent for Russell Europe Limited] [ADD IF
APPROPRIATE]
By:
------------------------------------
Title:
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement
dated as of January 31, 2002 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among Russell Corporation, Russell Europe
Limited, the Banks from time to time parties thereto, Wachovia Bank, N.A., as
Administrative Agent, Suntrust Bank (formerly Suntrust Bank, Atlanta), as
Syndication Agent and First Union National Bank, as Documentation Agent.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
_____________________, the duly authorized [Chief Financial Officer/Chief
Accounting Officer] of the Borrower, hereby (i) certifies to the Administrative
Agent and the Banks that the information contained in the Compliance Check List
attached hereto is true, accurate and complete as of ____________________,
______, and that no Default is in existence on and as of the date hereof and
(ii) restates and reaffirms that the representations and warranties contained in
Article IV of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
RUSSELL CORPORATION (SEAL)
By:
-----------------------------------
Name and title of [Chief Financial
Officer/Chief Accounting Officer]
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
1. Consolidations, Mergers and Sales of Assets (Section
5.05)
(a) The Borrower 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 Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any Subsidiary Guarantor (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 Borrower or
any Subsidiary Guarantor (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 Borrower 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 Borrower 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 Borrower or any Subsidiary
Guarantor; (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 all Banks and the Dollar Equivalent of the Foreign Currency
Loans of all 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 Borrower and its Subsidiaries)); (vi) the sale and leaseback of the
Borrower'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 Borrower and
its Subsidiaries listed on Schedule 5.05 hereof which have been categorized as
"assets held for sale" by the Borrower; 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.
(a) Aggregate amount of Receivables Disposed: $____________
Limitation: (a) may not exceed $50,000,000
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
(b) Dates upon which Receivables have been Disposed: $____________
Limitation: must occur between July 1, 2002 and October 31, 2002
(c) Aggregate outstanding principal amount of all Syndicated Dollar Loans and Swing Loans $____________
of all Banks and the Dollar Equivalent of the Foreign Currency Loans of all Banks at the
time such Receivables were disposed:
Limitation: (c) must equal or exceed $225,000,000
(d) Fair market value of other property disposed during this Fiscal Year: $____________
Limitation: (d) must not exceed $5,000,000
2. Investments (Section 5.16)
From and after the Restatement Effective Date, neither the
Borrower 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 Restatement 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 Banks, 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 Borrower
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 Borrower or any Subsidiary to
the Borrower or any Subsidiary Guarantor, (ix) Investments in Frontier Yarns LLC
in an aggregate amount not to exceed $9,900,000 (provided, that any cash
Investments made in Frontier shall be limited to the proceeds of the asset
transfers
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
of the Borrower'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.
Aggregate principal amount outstanding of loans or advances to officers, $____________
directors and employees (other than for relocation expenses in
connection with the Restructuring Program) in the ordinary course of business in
accordance with historical practices existing on the Closing Date
Limitation $3,000,000
Other aggregate Investments in the current Fiscal Year not permitted by clauses (i) through $____________
(xi) above
Limitation $5,000,000
3. Debt/EBITDA Ratio (Section 5.20)
The Borrower 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
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
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
(a) Consolidated Total Debt--Schedule 2 $______________
(b) Consolidated EBITDA--Schedule 1 $______________
(c) Ratio of (a) to (b) ____ to 1.00
(d) Maximum ratio ____ to 1.00 (see above)
4. Minimum Consolidated Net Worth (Section 5.21)
Consolidated Net Worth shall at no time 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 Restatement Effective Date, calculated quarterly at the end
of each Fiscal Quarter.
(a) Consolidated Net Worth--Schedule 3 $____________
(b) Cumulative Reported Net Income of the Borrower and its $____________
Consolidated Subsidiaries
(c) 50% of (b) $____________
(d) Cumulative Net Proceeds of Capital Stock received after the
Restatement Effective Date
(e) Sum of $415,000,000, (c) and (d) $____________
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
(1) Limitation: (a) may not be less than (e)
5. Debt Service Coverage Ratio (Section 5.22)
The Borrower 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
FQ 2 2004 1.75 to 1.00
FQ 3 2004 1.75 to 1.00
FQ 4 2004 1.75 to 1.00
- ----------------
(1) For the purposes of this section the calculation of Reported Net Income
excludes any Fiscal Quarter in which the Reported Net Income of the Borrower is
its Consolidated Subsidiaries is negative and 100% of the cumulative Net
Proceeds of Capital Stock received during any period after the Closing Date.
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
(a) Consolidated EBITDA--see Schedule 1 $______________
(b) Consolidated Interest Expense--see Schedule 4 $______________
(c) Aggregate amount of payments on account of principal of Debt of the Borrower $______________
or any of its Subsidiaries scheduled to be made during the next four
consecutive Fiscal Quarters
(d) Sum of (b) and (c) $______________
(e) Actual Ratio of (a) to (d) __ to 1.0
Limitation (e) must be less than __ to 1.0 (see above)
Capital Expenditures (Section 5.23)
Neither the Borrower nor any of its Consolidated Subsidiaries
shall make or commit to make any Capital Expenditure, except Capital
Expenditures of the Borrower 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.
(a) Aggregate amount of Capital Expenditures during this Fiscal Year (must be FY $______________
2002, 2003 or 2004)
(b) Aggregate amount of Capital Expenditures permitted to be carried over
from $______________ the prior Fiscal Year (only available in FY 2003
and FY 2004 with such amount not to exceed $10,000,000) $______________
(c) Sum of (b) and $40,000,000 $______________
Limitation: (a) may not exceed (c) __ to 1.0
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
Schedule 1
Consolidated EBITDA(3)
(a) Consolidated Net Income for:
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
Total $
(b) Consolidated Interest Expense for:
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
Total $
(c) Taxes on income for:
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
(3) With respect to any Consolidated Subsidiary acquired during the four
Fiscal Quarter period set forth below, such Consolidated Subsidiary shall be
included on a pro forma, historical basis as if it had been a Consolidated
Subsidiary during such entire four Fiscal Quarter period.
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
Total $
(d) restructuring, relocation and other unusual charges incurred in connection $
with the Restructuring Program in Fiscal Years 1998 through 2001, not
exceeding, on a pre-tax basis, (i) $61,078,000 in the third Fiscal
Quarter of Fiscal Year 1998, (ii) $13,929,000 in the fourth Fiscal
Quarter of Fiscal Year 1998, (iii) $26,900,800 in the first Fiscal
Quarter of Fiscal Year 1999, (iv) $4,374,500 in the second Fiscal
Quarter of Fiscal Year 1999 and (v) an aggregate of $102,026,000 in the
period from and including the third Fiscal Quarter of Fiscal Year 1999
through the end of Fiscal Year 2001; and in any event the aggregate of
all such charges on an after-tax basis shall not exceed $125,000,000
(e) Depreciation expense for:
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
Total $
(f) Amortization expense for:
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
Total $
(g) Other non-cash charges for:
___ quarter ___ $
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
___ quarter ___ $
___ quarter ___ $
___ quarter ___ $
Total $
TOTAL CONSOLIDATED EBITDA (sum of (a) through (g)) $
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
Consolidated Total Debt
(1) obligations for borrowed money $___________
(2) obligations of such Person evidenced by bonds, debentures, notes or other $___________
similar instruments
(3) 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
(4) obligations as lessee under capital leases $___________
(5) obligations of such Person to reimburse any bank or other Person in respect $___________
of amounts payable under a banker's acceptance
(6) Redeemable Preferred Stock of such Person (in the event such Person is a $___________
corporation)
(7) 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) to the extent it does not arise from commercial letters of
credit or similar instruments
(8) all Debt of others secured by a Lien on any asset of such Person, whether or $___________
not such Debt is assumed by such Person
(9) 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 by the
International Swap Dealers Association and agreed to by such Person in the applicable
hedging agreement, if any)
(10) To the extent not included in (1) through (9) above, all Debt of Elcatex $___________
Guaranteed by the Borrower or any of its Consolidated Subsidiaries
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
(11) other Debts of the types described in (1) through (10) above of Persons other $___________
than the Borrower or a Consolidated Subsidiary which are Guaranteed by the Borrowers
or any Consolidated Subsidiary(4)
- ----------------------
(4) Include 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.
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
(5) Schedule 3
Consolidated Net Worth
(a) Shareholders' equity of the Borrower and its Consolidated Subsidiaries, as $____________
set forth or reflected on the most recent consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries prepared in accordance with GAAP
(b) Amount of Redeemable Preferred Stock of the Borrower or any of its $____________
Consolidated Subsidiaries
(c) CONSOLIDATED NET WORTH = (a) minus (b) $____________
- -----------------------
(5) Include such 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.
COMPLIANCE CHECK LIST
Russell Corporation
--------------------------------
--------------, -------
Schedule 4
Consolidated Interest Expense
Consolidated Interest Expense for:
___ quarter ___ $____________
___ quarter ___ $____________
___ quarter ___ $____________
___ quarter ___ $____________
Total $____________
EXHIBIT G
[RESERVED]
EXHIBIT H
[RESERVED]
EXHIBIT I
[RESERVED]
EXHIBIT J
[RESERVED]
EXHIBIT K
[RESERVED]
EXHIBIT L
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of October 15,
1999, by RUSSELL CORPORATION, an Alabama corporation (the "Guarantor) in favor
of the Administrative Agent, for the ratable benefit of the Banks, under the
Credit Agreement referred to below;
W I T N E S S E T H :
WHEREAS, Russell Corporation (the Guarantor") and Russell
Europe Limited, as a Borrower only with respect to Foreign Currencies (the
Foreign Currency Borrower"), Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), Suntrust Bank, Atlanta, as Syndication Agent, First
Union National Bank, as Documentation Agent and certain other Banks from time to
time party thereto have entered into a certain Credit Agreement dated as October
15, 1999 (as amended as of the date hereof and as it may be amended or modified
further from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit to be made by the Banks
to the Foreign Currency Borrower which will the benefit the Guarantor;
WHEREAS, it is required under Section 3.01 of the Credit
Agreement that the Guarantor execute and deliver this Guaranty whereby it shall
guarantee the payment when due of all principal, interest and other amounts that
shall be at any time payable by the Foreign Currency Borrower under the Credit
Agreement, the Foreign Currency Loan Notes and the other Loan Documents executed
by it; and
WHEREAS, in consideration of the ownership of the Foreign
Currency Borrower by the Guarantor, and in order to induce the Banks and the
Administrative Agent to enter into and maintain the credit facilities under the
Credit Agreement, the Guarantor is willing to guarantee the obligations of the
Foreign Currency Borrower under the Credit Agreement, the Notes and the other
Loan Documents executed by it;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. The Guaranty. The Guarantor hereby unconditionally
guarantees (i) the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Foreign
Currency Loan Note issued by the Foreign Currency Borrower pursuant to the
Credit Agreement, and the full and punctual payment of all other amounts payable
by the Foreign Currency Borrower under the Credit Agreement, including, without
limitation, all Foreign Currency Loans made to the Foreign Currency Borrower and
interest thereon, and (ii) the timely performance of all other obligations of
the Foreign Currency Borrower under the Credit Agreement and the other Loan
Documents executed by it (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Foreign Currency Borrower to pay punctually
any such amount or perform such obligations, the Guarantor agrees that it shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the Credit Agreement, the relevant Note or the relevant Loan
Document, as the case may be, or perform such obligation in accordance with the
terms and conditions therefor specified in the Credit Agreement or the other
Loan Documents, and pay all costs of collection, including reasonable attorneys
fees; provided that, notwithstanding the provisions of O.C.G.A. ss.
13-1-11(a)(2) to the contrary, the Guarantor shall not be obligated to pay more
than the attorneys fees actually incurred in connection with such collection.
SECTION 3. Guaranty Unconditional. The obligations of the
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Foreign Currency Borrower
under the Credit Agreement, any Note, or any other Loan Document, by operation
of law or otherwise or any obligation of any other guarantor of any of the
Guaranteed Obligations;
(b) any modification or amendment of or supplement to the
Credit Agreement, any Note, or any other Loan Document;
(c) any release, nonperfection or invalidity of any
direct or indirect security, if any, for any obligation of the Foreign Currency
Borrower under the Credit Agreement, any Note, any Loan Document, or any
obligations of any other guarantor of any of the Guaranteed Obligations;
(d) any change in the partnership structure or ownership
of the Foreign Currency Borrower or corporate structure or ownership of any
other guarantor of any of the Guaranteed Obligations, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the Foreign
Currency Borrower, or any other guarantor of the Guaranteed Obligations, or its
assets or any resulting release or discharge of any obligation of the Foreign
Currency Borrower, or any other guarantor of any of the Guaranteed Obligations;
(e) the existence of any claim, setoff or other rights
which the Guarantor may have at any time against the Foreign Currency Borrower,
any other guarantor of any of the Guaranteed Obligations, the Administrative
Agent, any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim
(f) any invalidity or unenforceability relating to or
against the Foreign Currency Borrower, or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit Agreement, any
other Loan Document, or any other Guarantee, or the lack of legal existence of
the Foreign Currency Borrower, or any provision of applicable law or regulation
purporting to prohibit or make illegal the payment by the Foreign Currency
Borrower, or any other guarantor of the Guaranteed Obligations, of the principal
of or interest on any Note or any other amount payable by the Foreign Currency
Borrower under the Credit Agreement, the
Notes, or any other Loan Document, or the performance of any other obligation or
undertaking of the Foreign Currency Borrower under the Credit Agreement, any
other Loan Document, or any other Guarantee or otherwise making any of the
Guaranteed Obligations irrecoverable from the Foreign Currency Borrower for any
reason; or
(g) any law, regulation, order, decree or directive
(whether or not having the force of law) or any interpretation thereof, now or
hereafter in effect in any jurisdiction, that purports to modify any of the
terms of or rights of any Bank with respect to any Guaranteed Obligation or
under the Credit Agreement or any other Loan Document or this Guaranty,
including without limitation any law, regulation, order, decree or directive or
interpretation thereof that purports to require or permit the satisfaction of
any Guaranteed Obligation other than strictly in accordance with the terms of
the Credit Agreement or any other Loan Document (such as by the tender of a
currency other than the relevant Foreign Currency) or that restricts the
procurement of the Foreign Currency by the Foreign Currency Borrower or the
Guarantor, or any agreement, whether or not signed by or on behalf of any Bank,
in connection with the restructuring or rescheduling of public or private
obligations in any Borrower's country, whether or not such agreement is stated
to cause or permit the discharge of the Guaranteed Obligations prior to the
final payment in full of the Guaranteed Obligations in the relevant Foreign
Currency in strict accordance with the Credit Agreement or other Loan Documents
(h) any other act or omission to act or delay of any kind
by the Foreign Currency Borrower, any other guarantor of the Guaranteed
Obligations, the Administrative Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of any Guarantor's obligations
hereunder.
SECTION 4. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. The Guarantor's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Foreign Currency Borrower under the Credit
Agreement or any other Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Foreign
Currency Borrower or otherwise, the Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
SECTION 5. WAIVER OF NOTICE BY THE GUARANTOR. The Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Foreign Currency Borrower, any other guarantor of the Guaranteed Obligations, or
any other Person.
SECTION 6. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Foreign Currency Borrower under the
Credit Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Foreign Currency Borrower, all
such amounts otherwise subject to acceleration under the terms of the Credit
Agreement, any Note or any other Loan Document shall nonetheless be payable by
the Guarantor hereunder forthwith on demand by the Administrative Agent made at
the request of the Required Banks.
SECTION 7. NOTICES. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient at
its address or telecopier number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of Section 9.01 of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given when
transmitted by telecopier, or personally delivered or, in the case of a mailed
notice, 3 Domestic Business Days after such communication is deposited in the
mails with first class postage prepaid, in each case given or addressed as
aforesaid.
SECTION 8. NO WAIVERS. No failure or delay by the
Administrative Agent or any Banks in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Credit Agreement, the Notes, and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9. SUCCESSORS AND ASSIGNS. This Guaranty is for the
benefit of the Administrative Agent and the Banks and their respective
successors and assigns and in the event of an assignment of any amounts payable
under the Credit Agreement, the Notes, or the other Loan Documents, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty may not be assigned by the
Guarantor without the prior written consent of the Administrative Agent and the
Required Banks, and shall be binding upon the Guarantor and its successors and
permitted assigns.
SECTION 10. CHANGES IN WRITING. Neither this Guaranty nor
any provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by the Guarantor and the Administrative Agent, with
the consent of the Required Banks.
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE
ADMINISTRATIVE AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY
GEORGIA STATE COURT SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE GUARANTOR AND THE ADMINISTRATIVE
AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12. TAXES, ETC. All payments required to be made by
the Guarantor hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.13(c) of the Credit Agreement, the
terms of which are incorporated herein by reference as to the Guarantor as fully
as if set forth herein, and for such purposes, the rights and obligations of the
Foreign Currency Borrower under such Section shall devolve to the Guarantor as
to payments required to be made by the Guarantor hereunder.
SECTION 13. FAILURE TO PAY IN FOREIGN CURRENCY. If the
Guarantor is unable for any reason to effect payment in a relevant Foreign
Currency as required by this Guaranty or if the Guarantor shall default in the
Foreign Currency, each Bank may, through the Administrative Agent, require such
payment to be made in Dollars in the Dollar Equivalent amount of such payment.
In any case in which the Guarantor shall make such payment in Dollars, the
Guarantor agrees to hold the Banks harmless from any loss incurred by the Banks
arising from any change in the value of Dollars in relation to such Foreign
Currency between the date such payment became due and the date of payment
thereof.
SECTION 14. JUDGMENT CURRENCY. If for the purpose of obtaining
judgment in any court or enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency into any other currency, the rate of
exchange used shall be the Administrative Agent's spot rate of exchange for the
purchase of the Foreign Currency with such other currency at the close of
business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Guarantor in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency other
than the relevant Foreign Currency the Agent is able (in accordance with normal
banking procedures) to purchase the relevant Foreign Currency with such other
currency. If the amount of the relevant Foreign Currency that the Administrative
Agent is able to purchase with such other currency is less than the amount due
in the relevant Foreign Currency, notwithstanding any judgment or order, the
Guarantor shall indemnify the Banks for the shortfall.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed, under seal, by its authorized officer as of the date first
above written.
RUSSELL CORPORATION
By:
------------------------------------
Eric N. Hoyle
Executive Vice President and Chief
Financial Officer
EXHIBIT M
FORM OF CONSENT AND CONFIRMATION
Reference is made to (i) the Credit Agreement, dated as of
October 15, 1999 (together with all amendments and modifications prior to the
date hereto, the "Original Credit Agreement"), among Russell Corporation,
Russell Europe Limited, the banks party thereto, Wachovia Bank, N.A., as
Administrative Agent, Suntrust Bank, Atlanta, as Syndication Agent and First
Union National Bank, as Documentation Agent and (ii) the Amended and Restated
Credit Agreement dated as of January 31, 2002 (together with all amendments and
modifications thereto, the "Credit Agreement") among Russell Corporation, an
Alabama corporation (the "Borrower"), Russell Europe Limited, the Banks (as
defined in the Credit Agreement), Wachovia Bank, N.A., as Administrative Agent
(the "Administrative Agent"), Suntrust Bank (formerly Suntrust Bank, Atlanta),
as Syndication Agent and First Union National Bank, as Documentation Agent).
Terms defined in the Credit Agreement are used herein with the same meaning.
Each of the undersigned hereby consents to the amendment and
restatement of the Original Credit Agreement pursuant to the Credit Agreement
and hereby confirms, reaffirms and restates that the Loan Documents to which it
is a party (and its obligations thereunder) are and shall remain in full force
and effect after giving effect to the amendment and restatement of the Original
Credit Agreement pursuant to the Credit Agreement.
Date: January 31, 2002
CROSS CREEK APPAREL, LLC
By: CROSS CREEK HOLDINGS, INC.,
its sole member and manager
By:
--------------------------------------
Name:
Title:
CROSS CREEK HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
DESOTO MILLS, INC.
By:
--------------------------------------
Name:
Title:
RUSSELL FINANCIAL SERVICES, INC.
By:
--------------------------------------
Name:
Title:
RUSSELL ASSET MANAGEMENT, INC.
By:
--------------------------------------
Name:
Title:
RINTEL PROPERTIES, INC
By:
--------------------------------------
Name:
Title:
SCHEDULE 4.08
to Amended and Restated Credit Agreement
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
- ------------------------------------------------------- -----------------------------------------------------
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
3
SCHEDULE 5.05
to Amended and Restated Credit Agreement
ASSETS HELD FOR SALE
LOCATION/DESCRIPTION ACREAGE/SQ. FOOTAGE
- -----------------------------------------------------------------------------------------------------
MARIANNA DISTRIBUTION CENTER 259,271 sq. ft./21.5 Acres
MARIANNA, FL
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
1
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
2
SCHEDULE 5.17
to Amended and Restated Credit Agreement
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.
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
2
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
3
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
4
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
Russell Thompson Tractor Alabama B96-50308FS 12/2/96 Specified Equipment
Corporation - DC Co., Inc. Secretary of
Mont. State
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
5
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
6
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
7
PAGE>
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
8
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
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 County, Georgia Fixtures, Minerals,
of Proceeds
Columbus, Georgia
(Assignee:
Synovus Trust
Company) Continued on 12/15/00
with continuation
#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
- --------------------------------------------------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------------------------------------------------
9
- --------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
- --------------------------------------------------------------------------------------------------------------------------
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 Borrower (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 Notes issued by the Borrower (the "1995
Notes"), pursuant to, and as defined in, the Note Agreement dated as of December
7, 1995 (the "1995 Note Agreement"), in the original principal amount of
$100,000,000 due November 30, 2008, the sole holder of which is Prudential.
4. Debt under the Notes issued by the Borrower (the "1997
Notes"), pursuant to, and as defined in, the Note Agreement dated as of August
28, 1997 (the "1997 Note Agreements"), in the original principal amount of
$125,000,000 due August 28, 2007, the sole holder of which is Prudential.
5. Debt under any agreements ("Cash Management Agreements")
between the Borrower 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).
6. Debt under the foreign exchange forward rate agreements
provided to the Borrower 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").
7. Debt under the Guarantee Agreement, dated as of August 4,
2000, by the Borrower to SunTrust Bank ("SunTrust") of loans by SunTrust to
Elasticos Centroamericanos Textiles, S.A. de C.V. (the "Elcatex Guarantee").
8. 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.
9. Debt under the Intercompany Receivables Agreements.
10. Debt under Letters of credit issued from time to time by
First Union National Bank for the account of one or more of the Borrower and its
Subsidiaries and for the benefit of a supplier of the Borrower or a Subsidiary
(the "First Union Letters of Credit").
11. Intercompany Debt owing by RUServicios, Sociedad Anonima
to the Borrower, as evidenced by a promissory note in the principal amount of
US$5,000,000.
12. Letters of Credit issued prior to the date hereof by
SunTrust for the account of one or more of the Borrower and its Subsidiaries and
for the benefit of a supplier of the Borrower or a Subsidiary (the "SunTrust
Letters of Credit").
10
13. Amended and Restated Term Loan/Bankers' Acceptance
Agreement dated as of January 31, 2002, between the Borrower and SunTrust (the
"SunTrust Loan Agreement").
14. ISDA Master Agreement and Schedule dated as of June 19,
1995 (the "SunTrust/Russell Swap Agreement"), between Trust Company Bank (now
SunTrust) and the Borrower.
15. Guarantee of obligations of the Borrower pursuant to the
Guarantee and Collateral Agreement.
16. Debt under the Loan Documents.
17. 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.
11
SCHEDULE 5.18
to Amended and Restated Credit Agreement
RESTRICTIVE AGREEMENTS
1. The Loan Documents
2. The 1992 Note Agreements
3. The 1995 Note Agreements
4. The 1997 Note Agreements
5. The Elcatex Guarantee
6. The Receivables Purchase Documents
7. The SunTrust Loan Agreement
8. The Guarantee and Collateral Agreement, together with the mortgages and
other agreements and documents relating thereto
9. Operating Agreement of Frontier Yarns LLC
10. Shareholders' Agreement dated September 30, 1999 Between Russell do
Brasil Ltda. and Companhia de Tecidos Norte de Minas - Coteminas
11. Marmot Mountain Ltd. Second Amended and Restated Stockholder Agreement
dated August 28, 2001
12. The agreements evidencing the Permitted Sale Leasebacks may limit the
ability of the Borrower to transfer or place liens upon the property
subject thereto