EXHIBIT (4g)
INTERCREDITOR AND AGENCY AGREEMENT
THIS INTERCREDITOR AND AGENCY AGREEMENT is made and entered into as of
December 14, 2001, by and among Wachovia Bank, N.A., as Collateral Agent for the
Secured Parties, the Noteholders, the Term Lender, the Swaps Lender, the Letter
of Credit Issuers, the Revolver Agents and the Banks (as each of such
capitalized terms is defined below).
R E C I T A L S:
Each Creditor is the holder of debt owing to it by Russell and/or
subsidiaries of Russell, and all of such debt is currently unsecured.
Certain of the Creditors have agreed to modify certain terms of their
respective Transaction Documents, provided that Obligors have executed various
Security Documents to encumber their real and personal property with Liens in
favor of Collateral Agent for the benefit of all of the Secured Parties.
Concurrently herewith, Obligors will execute and deliver the Security Documents
in favor of Collateral Agent.
The Secured Parties have requested Wachovia to serve as Collateral
Agent under the Security Documents. The Parties hereto desire to enter into this
Agreement to evidence various understandings and agreements relating to the
appointment, rights, remedies, and duties of Collateral Agent and various rights
and agreements as among all of the Secured Parties.
NOW, THEREFORE, the parties hereto intending to be legally bound, agree
as follows:
1. DEFINITIONS.
(a) As used herein, the following terms shall have the
following meanings ascribed to them (terms defined in the singular to have the
same meaning when used in the plural, and vice versa):
"1992 Notes" means the Senior Notes issued by
Russell, pursuant to the Note Agreements each dated as of December 1,
1992, in the original aggregate principal amount of $75,000,000 due
August 31, 2002, the holders of which are Teachers, AllState,
Connecticut General, and Prudential.
"1995 Notes" means the Senior Notes issued by
Russell, pursuant to the Note Agreement dated as of December 7, 1995,
in the original principal amount of $100,000,000 due November 30, 2008,
the sole holder of which is Prudential.
"1997 Notes" means the Senior Notes issued by
Russell, pursuant to the Note Agreement dated as of August 28, 1997, in
the original principal amount of $125,000,000 due August 28, 2007, the
sole holder of which is Prudential.
"Actual Principal Outstanding Amount" means, with
respect to any Lender at any time, the outstanding principal amount of
all Loans owing to such Lender at such time.
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"Actual Principal Outstanding Percentage" means, with
respect to any Lender at any time, a percentage equal to a fraction,
the denominator of which is equal to the Actual Outstanding Principal
Amount of all Lenders at such time and the numerator of which is equal
to such Lender's Actual Outstanding Principal Amount at such time.
"Additional Lien" has the meaning set forth in
Section 8(a).
"Adjusted Make-Whole Amount" means (a) with respect
to the 1992 Notes, the actual Make-Whole Amount for such Notes payable
at such time in accordance with the terms of the relevant Note
Agreements as in effect on the date hereof, and (b) with respect to the
1995 Notes and the 1997 Notes, the Make-Whole Amount for such Notes
that would be payable assuming the following adjustments to the
calculation of such Make-Whole Amount in accordance with the relevant
Note Agreements as in effect on the date hereof: (i) the "Remaining
Scheduled Payments" (as such term is defined in the Note Agreement on
the date hereof for each of the 1995 Notes and the 1997 Notes) for such
Notes shall be calculated as if the interest rate on such Notes were,
(x) in the case of the 1995 Notes, 6.78%, or (y) in the case of the
1997 Notes, 6.65%; and (ii) the discount factor used in the definition
of "Discounted Value" in Section 8.1 of each relevant Note Agreement on
the date hereof shall equal the "Reinvestment Yield" (as defined in
Section 8.1 of each relevant Note Agreement) at such time plus 0.74%.
"Adjusted Principal Outstanding Amount" means, with
respect to each Lender, the amount set forth for such Lender in the
column "Adjusted Principal Outstanding Amount" on Schedule 1 hereto
(except, that with respect to each Revolver Bank, such Revolver Bank's
Adjusted Principal Outstanding Amount shall be its ratable share of the
amount set forth on such Schedule, in accordance with the Revolver
Credit Agreement); provided that, with respect to any Lender which is a
holder of 1992 Notes (except any such Lender which is also a holder of
other Loans), from and after the date on which such Lender's Actual
Principal Outstanding Amount has been reduced to $0 (as a result of
payments on such Lender's Loan permitted hereunder), such Lender's
Adjusted Principal Outstanding Amount shall be deemed for all purposes
of this Agreement to be $0.
"Adjusted Principal Outstanding Percentage" means,
for each Lender, a percentage equal to a fraction, the denominator of
which is equal to the Adjusted Principal Outstanding Amount of all
Lenders and the numerator of which is equal to such Lender's Adjusted
Principal Outstanding Amount.
"Affiliate" means a Person: (i) which directly or
indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, another Person; (ii)
which beneficially owns or holds 10% or more of any class of the equity
interests of a Person; or (iii) 10% or more of the equity interests
with power to vote of which is beneficially owned or held by another
Person or a subsidiary of another Person. For purposes hereof,
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of any equity interest, by
contract or otherwise.
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"Agent Professionals" means attorneys, accountants,
appraisers, business valuation experts, environmental engineers,
turnaround consultants, or other professionals or experts at any time
or times retained by Collateral Agent in the discharge of its duties
hereunder or under any of the Security Documents.
"Aliant" means Aliant Bank.
"AllState" means AllState Life Insurance Company.
"AmSouth" means AmSouth Bank.
"Applicable Law" means all laws, rules and
regulations applicable to the Person, conduct, transaction, covenant,
Transaction Document, or Security Document in question, including all
applicable common law and equitable principles; all provisions of all
applicable state, federal and foreign constitutions, statutes, rules,
regulations and orders of governmental bodies; and all orders,
judgments and decrees of all courts and arbitrators.
"Bank" means any bank that is a Revolver Bank or a
Cash Management Service Provider.
"Business Day" means any day except a Saturday,
Sunday, or any other day on which commercial banks in Georgia and New
York are authorized by law to close.
"Cash Management Agreements" means, individually and
collectively, as the context shall require, any agreements between an
Obligor, on the one hand, and any Cash Management Service Provider, on
the other hand, whether now or hereafter in effect, pursuant to which
such Cash Management Service Provider provides Cash Management
Services.
"Cash Management Obligations" means liabilities and
obligations of any Obligor to any Bank that arises out of or relates to
any depository account relationship or other cash management services
provided by a bank (including any lockbox, dominion account, wire
transfer, or ACH privileges).
"Cash Management Services" means cash management
services for operating, collection, payroll and trust accounts of
Russell and/or its Subsidiaries provided by any Cash Management
Services Provider and/or its Affiliates, including automatic
clearinghouse services, control disbursement services, electronic funds
transfer services, information reporting services, lockbox services,
stop payment services, and wire transfer services.
"Cash Management Services Obligations" means any and
all obligations of any Cash Management Services Provider and/or any of
its Affiliates under any of the Cash Management Agreements or otherwise
relating to any of the Cash Management Services.
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"Cash Management Services Provider" means any
Creditor or Affiliate thereof which provides Cash Management Services
to Russell and/or any of its Affiliates under any of the Cash
Management Agreements or otherwise relating to any of the Cash
Management Services, in its capacity as the provider of such services.
"Chase" means JPMorgan Chase Bank (successor to The
Chase Manhattan Bank).
"Chase Swaps" means the foreign exchange forward rate
agreements provided to Russell by Chase pursuant to the ISDA Master
Agreement and Schedules thereto dated as of July 24, 2001.
"Collateral" means all real and personal property of
any Obligor that is subject to any Liens in favor of Collateral Agent
pursuant to the Security Documents.
"Collateral Agent" means Wachovia, in its capacity as
collateral agent for Secured Parties under this Agreement and the
Security Documents, together with its successors in such capacity.
"Collateral Reserve Account" means an account
established at Wachovia for the purpose of receiving payments or
proceeds to be held, invested, and distributed in accordance with the
terms of this Agreement.
"Comerica" means Comerica Bank.
"Connecticut General" means Connecticut General Life
Insurance Company.
"Creditors" means each Bank, the Swaps Lender, each
Letter of Credit Issuer, each Noteholder and Term Lender.
"Cross Creek" means Cross Creek Apparel, LLC, a North
Carolina limited liability company.
"Cross Creek Holdings" means Cross Creek Holdings,
Inc., a Delaware corporation.
"Default Notice" has the meaning given to it in
Section 9(a) hereinbelow.
"DeSoto" means DeSoto Mills, Inc., an Alabama
corporation.
"Documentation Agent" means First Union, in its
capacity as documentation agent under the Revolver Bank Documents.
"Dollars" and the sign "$" means lawful money of the
United States of America.
"Elcatex" means Elasticos Centroamericanos Textiles,
S.A. de C.V.
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"Elcatex Guarantee" means the Guarantee Agreement,
dated as of August 4, 2000, from Russell in favor of SunTrust.
"Elcatex Promissory Note" means the Promissory Note
dated as of August 7, 2000 made by Elcatex in favor of SunTrust.
"Enforcement Action" means any judicial or
non-judicial action by a Party to repossess, replevy, collect, levy,
attach, or garnish, or to foreclose, execute, or otherwise enforce or
realize upon any Lien with respect to, any Collateral.
"Enforcement Direction" means the written direction
from the Required Secured Parties addressed to Collateral Agent and
specifying the Enforcement Action to be taken by Collateral Agent with
respect to the Collateral.
"Event of Default" means any event of default or
equivalent event under any of the Transaction Documents or Security
Documents (other than any event of default under the Elcatex Note or
the SunTrust/Elcatex Swap Agreement, or any event of default under
Elcatex Guarantee arising solely by reason of the failure of Elcatex to
pay or perform its obligations under the Elcatex Note or the
SunTrust/Elcatex Swap Agreement (it being agreed that a failure of
Russell to pay or perform its obligations under the Elcatex Guarantee
shall give rise to an Event of Default)) that has not been waived (in
accordance with the terms of the relevant Transaction Documents or
Security Documents) or cured.
"Extraordinary Expenses" means all costs, expenses,
fees (including reasonable fees actually incurred to Agent
Professionals), or advances that Collateral Agent may suffer or incur,
whether prior to or after the occurrence of any Event of Default, and
whether prior to, after, or during the pendency of an Insolvency
Proceeding of an Obligor, on account of or in connection with (i) the
audit, inspection, repossession, storage, repair, appraisal, insuring,
completion of the manufacture of, preparing for sale, advertising for
sale, selling, collecting, or otherwise preserving or realizing upon
any Collateral; (ii) the defense of Collateral Agent's Lien upon any
Collateral or the priority thereof or any adverse claim with respect to
any of the Security Documents or Collateral asserted by any Obligor,
receiver, or trustee for any Obligor or any Creditor or representative
of Creditors of any Obligor; (iii) the settlement or satisfaction of
any Liens upon any Collateral (whether or not such Liens are permitted
by the terms of the Security Documents; or (iv) the enforcement of any
of the provisions of any of the Security Documents.
"First Union" means First Union National Bank, a
national bank.
"First Union Letters of Credit" means letters of
credit at any time issued by First Union for the account of one or more
Obligors and for the benefit of a supplier of Obligors.
"Global Guarantee" means the joint and several
guarantee by the Guarantors of the payment of the Secured Debt owing to
each Secured Party contained in Section 2 of the Guarantee and
Collateral Agreement.
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"Guarantee and Collateral Agreement" means the
Guarantee and Collateral Agreement made by the Obligors in favor of the
Collateral Agent, dated as of December 14, 2001.
"Guarantor Payments" means any payment made by any
Guarantor to a Secured Party under the Global Guarantee.
"Guarantors" means DeSoto, Cross Creek, Cross Creek
Holdings, and any other Person that is obliged to become a party to the
Global Guarantee.
"Insolvency Proceeding" means any action, case, or
proceeding commenced by or against a Person, or any agreement of such
Person, for (i) the entry of an order for relief under any chapter of
the Bankruptcy Code or other insolvency or debt adjustment law (whether
state, federal, or foreign), (ii) the appointment of a receiver,
trustee, liquidator, or other custodian for such Person or any part of
its properties; (iii) an assignment or trust mortgage for the benefit
of creditors of such Person; or (iv) the liquidation, dissolution, or
winding up of the affairs of such Person.
"Insurance Proceeds" means proceeds of any property
or casualty insurance covering any of the Collateral.
"LC Obligations" means on any date of determination
thereof, an amount (in Dollars) equal to the sum of (i) all amounts
then due and payable by any Obligor on such date by reason of any
payment made on or before such date by the issuer of a Letter of
Credit, plus (ii) the aggregate undrawn amount of all Letters of Credit
then outstanding or to be issued by a Bank.
"Lenders" means each Revolver Bank, each Noteholder,
and Term Lender.
"Letter of Credit Issuer" means each of (i) First
Union in its capacity as the issuer of the First Union Letters of
Credit and (ii) SunTrust in its capacity as issuer of the SunTrust
Letters of Credit.
"Letters of Credit" means the First Union Letters of
Credit and the SunTrust Letters of Credit.
"Lien" means any interest in any property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based upon common law, a statute or
contract, including (i) any lien or security interest arising from a
mortgage, deed of trust, pledge, security agreement, conditional sale,
consignment, lease, or bailment for security purposes; (ii) liens
obtained by judgment or in any judicial proceeding; and (iii) liens
conferred or authorized in any Insolvency Proceeding.
"Loans" means the Secured Debt consisting of
indebtedness pursuant to the Revolver Bank Documents, the SunTrust Loan
Agreement, the Elcatex Promissory Note and the Note Agreements.
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"Make-Whole Amount," as to any Note, has the meaning
set forth in the Note Agreement (as in effect on the date hereof)
pursuant to which such Note was issued.
"Material Event of Default" means (i) any Event of
Default arising from the failure to make any payment in respect of any
Secured Debt when due under the Transaction Documents or (ii) any Event
of Default pursuant to clause (g) or (h) of Section 6.01 of the
Revolver Credit Agreement (relating to bankruptcy or similar events) or
equivalent Event of Default under any other Transaction Document.
"Mortgage" means a mortgage, deed of trust, deed to
secure debt, or other agreement executed by an Obligor to grant and
convey to Collateral Agent a Lien upon any real property of an Obligor.
"Note Agreements" means the note agreements pursuant
to which the 1992 Notes, the 1995 Notes and the 1997 Notes were issued.
"Noteholders" means the holders of the 1992 Notes,
1995 Notes, and 1997 Notes.
"Notes" means 1992 Notes, 1995 Notes, and 1997 Notes.
"Notice of Borrowing" has the meaning given to it in
the Revolver Bank Documents, as in effect on the date hereof.
"Notice Parties" means Revolver Administrative Agent,
the Letter of Credit Issuers, the Swaps Lender, the Noteholders, and
Term Lender.
"Obligors" means Russell, Russell Europe Limited and
the Guarantors.
"Party" means a Person who is, on the date hereof, or
thereafter becomes a party to this Agreement.
"Percentage" means, for each Secured Party on any
date, a percentage equal to a fraction, the denominator of which is
equal to all of the Secured Debt owed to all Secured Parties on such
date (including, for purposes of such calculation, all LC Obligations
outstanding on such date) and the numerator of which is equal to the
Secured Debt owed to such Secured Party on such date (including, for
purposes of such calculation, all LC Obligations outstanding on such
date); provided, however, that, while the Revolver Commitments are
still in effect and prior to Collateral Agent's receipt of a Default
Notice relating to a Material Event of Default, the numerator of the
foregoing fraction for each Revolver Bank shall be equal to the amount
of such Revolver Bank's Revolver Commitment on such date.
"Person" means an individual, a partnership, a joint
venture, a corporation, a limited liability corporation or partnership,
a trust, limited liability company, an unincorporated organization and
a government or any department or agency thereof.
"Prudential" means The Prudential Insurance Company
of America.
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"Realization Proceeds" means any cash or non-cash
proceeds received by Collateral Agent in connection with Collateral
Agent's enforcement of its Liens upon any of the Collateral.
"Recording Costs" means all fees, taxes, and other
expenses incurred by Collateral Agent in connection with the filing or
recording of any UCC-1 financing statement, Mortgage, or any other
document that is filed or recorded to perfect or otherwise give record
notice of any of the Liens granted or conveyed pursuant to any of the
Security Documents.
"Remaining Make-Whole Amount" means, with respect to
the 1995 Notes and the 1997 Notes, the excess of (a) the actual
Make-Whole Amount owing in respect of the applicable Notes over (b) the
Adjusted Make-Whole Amount with respect to such Notes.
"Represented Creditor" means a Creditor whose
interests are represented by a Notice Party, which, in the case of
Revolver Administrative Agent, include all Revolver Banks.
"Required Secured Parties" means Creditors holding at
least 66-2/3% of the total outstanding Secured Debt (and for purposes
hereof, the Revolver Banks shall act solely as a group through
direction to Revolver Administrative Agent); provided that, in the case
of a Revolver Bank so long as the Revolver Commitments are still in
effect and prior to Collateral Agent's receipt of a Default Notice
relating to a Material Event of Default, the Revolver Commitment of
such Revolver Bank shall be deemed to be its outstanding Secured Debt
for the purposes of this definition.
"Revolver Administrative Agent" means Wachovia, in
its capacity as administrative agent for the Revolver Banks.
"Revolver Agents" means Revolver Administrative
Agent, Syndication Agent, and Documentation Agent.
"Revolver Bank Documents" means the Revolver Credit
Agreement and all other instruments and agreements evidencing or
securing loans and other extensions of credit made by Revolver Banks to
Revolver Borrowers.
"Revolver Banks" means each "Bank" from time to time
as such term is defined in the Revolver Credit Agreement, which as of
the date hereof, is Wachovia, SunTrust, First Union, AmSouth, Chase,
Comerica and Aliant.
"Revolver Borrowers" means Russell and Russell Europe
Limited, a corporation organized under the laws of the United Kingdom.
"Revolver Commitment" means, for each Revolver Bank
on any date, the aggregate amount of such Revolver Bank's commitments
under the Revolver Credit Agreement on such date; provided, however,
that if such commitments have been terminated on or as of such date,
then the amount of the commitments shall be zero.
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"Revolver Credit Agreement" means the Credit
Agreement, dated as of October 15, 1999, among Russell, Russell Europe
Limited, the Revolver Agents and the Revolver Banks.
"Russell" means Russell Corporation, an Alabama
corporation.
"Russell Europe Guarantee" means the Guarantee dated
as of October 15, 1999 by Russell executed in connection with the
obligations of Russell Europe Limited under the Revolver Credit
Agreement.
"Russell Financial" means Russell Financial Services,
Inc., a Delaware corporation.
"Secured Debt" means, at any time, indebtedness owing
at such time to any of the Secured Parties under any of the Transaction
Documents, including any LC Obligations and including any net swap
amounts then owing with respect to the Swaps and any termination
amounts that would then be payable if the Swaps were terminated at such
time.
"Secured Parties" means Creditors and Revolver
Agents.
"Security Documents" means the Guarantee and
Collateral Agreement 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 Secured Parties.
"Setoff Proceeds" means any proceeds received by any
Secured Party from its exercise of a right of set-off, recoupment, or
bankers' Lien from or against any deposit (general or special, time or
demand, provisional or final) held for the credit or account of any
Obligor, but excluding any such proceeds applied by a Cash Management
Services Provider to any Cash Management Obligations.
"Shared Payments" means all Realization Proceeds,
Insurance Proceeds, Setoff Proceeds, Guarantor Payments and direct
payments of amounts owing in respect of Secured Debt from any Obligor.
"SunTrust" means SunTrust Bank, a Georgia banking
corporation formerly known as Trust Company Bank.
"SunTrust Letters of Credit" means Letters of Credit
issued prior to the date hereof by SunTrust for the account of one or
more Obligors and for the benefit of a supplier of Obligors.
"SunTrust Loan Agreement" means Term Loan/Bankers'
Acceptance Agreement dated as of June 30, 1995, between Russell and
SunTrust.
"SunTrust/Elcatex Swap Agreement" means the ISDA
Master Agreement and Schedule dated as of July 28, 2000, between
SunTrust and Elcatex.
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"SunTrust/Russell Swap Agreement means the ISDA
Master Agreement and Schedule dated as of June 19, 1995, between Trust
Company Bank (now SunTrust) and Russell.
"SunTrust Swaps" means the interest rate swaps
provided pursuant to the SunTrust/Russell Swap Agreement.
"Swaps" means the Chase Swaps and the SunTrust Swaps.
"Swaps Lender" means Chase in its capacity as party
to the Chase Swaps.
"Syndication Agent" means SunTrust, in its capacity
as syndication agent under the Revolver Bank Documents.
"Teachers" means Teachers Insurance and Annuity
Association of America.
"Term Lender" means SunTrust in its capacity as party
to the Term Lender Loan Documents.
"Term Lender Loan Documents" means the SunTrust Loan
Agreement, the Elcatex Promissory Note, the SunTrust Letters of Credit,
the SunTrust/Russell Swap Agreement, the SunTrust/Elcatex Swap
Agreement and the Elcatex Guarantee, and all other instruments and
agreements executed by Russell or Elcatex in connection therewith.
"Third Party Guarantee" has the meaning set forth in
Section 8(a).
"Transaction Documents" means the following
instruments and agreements evidencing or securing Secured Debt owing to
Secured Parties: the Note Agreements, the First Union Letters of
Credit, the Revolver Bank Documents, the Chase Swaps and the Term
Lender Loan Documents.
"Transferee" has the meaning ascribed to it in
Section 28(b) hereinbelow.
"Wachovia" means Wachovia Bank, N.A., a national
bank.
(b) The terms "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular section, paragraph, or subdivision. Any pronoun used shall be deemed
to cover all genders. The section titles appear as a matter of convenience only
and shall not affect the interpretation of this Agreement. All references to
statutes and related regulations shall include any amendments of same and any
successor statutes and regulations; to any of the Transaction Documents or
Security Documents shall include any and all modifications thereto and any and
all restatements, extensions or renewals thereof (except as otherwise
specifically provided herein); to any Person shall mean and include the
successors and permitted assigns of such Person; or to "including" shall be
understood to mean "including, without limitation" (and, for purposes of this
Agreement, the parties agree that the rule of ejusdem generis shall not be
applicable to limit a general statement,
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which is followed by or referable to an enumeration of specific matters to
matters similar to the matters specifically mentioned).
2. APPOINTMENT OF COLLATERAL AGENT.
(a) Each Secured Party hereby irrevocably appoints and
designates Wachovia as Collateral Agent to act as herein specified. Wachovia
hereby accepts such appointment on the terms and conditions set forth herein.
Each Secured Party hereby authorizes Collateral Agent to enter into all of the
Security Documents, for the benefit of the Secured Parties in accordance with
the terms hereof, and to exercise such rights and powers under this Agreement
and the Security Documents as are specifically delegated to Collateral Agent by
the terms hereof and thereof, together with such other rights and powers as are
reasonably incidental thereto or as are customarily and typically exercised by
agents performing duties similar to the duties of Collateral Agent hereunder and
under the Security Documents, subject, however, to any express limitations set
forth herein or in the Security Documents. The duties of Collateral Agent shall
be deemed ministerial and administrative in nature, and Collateral Agent shall
not have, by reason of this Agreement or any of the Security Documents, a
fiduciary relationship with any Secured Party (or any Secured Party's
participants or Affiliates).
(b) Collateral Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or be
required to take, initiate, or conduct any litigation, foreclosure, collection
proceedings, or other Enforcement Action or take action under any of the
Security Documents, except pursuant to an Enforcement Direction during the
continuance of any Material Event of Default. The conferral upon Collateral
Agent of any right or power hereunder or under any of the Security Documents
shall not imply a duty on Collateral Agent's part to exercise such right or
power, unless directed to do so by the Required Secured Parties in accordance
with this Agreement. Collateral Agent may take, but shall have no obligation to
take, any action under the Security Documents or otherwise as it shall deem to
be in the best interests of Secured Parties in order to maintain, protect, or
preserve the Collateral and the rights of Secured Parties with respect thereto,
including the curing of any default under the Security Documents, the discharge
of any tax or charge resulting in a Lien upon any Collateral, or the payment of
insurance premiums with respect to insurance required to be maintained by
Obligors under any of the Security Documents; provided, however, that, in the
absence of an Enforcement Direction, Collateral Agent shall not be authorized to
foreclose upon any Lien with respect to any of the Collateral or take any other
Enforcement Action with respect to the Collateral or any part thereof.
Collateral Agent may perform any of its duties by or through its agents and
employees and may employ one or more Agent Professionals to advise or assist it
from time to time, but shall not be responsible for the negligence or misconduct
of any such Agent Professionals selected by it with reasonable care.
(c) The rights, remedies, powers, and privileges
conferred upon Collateral Agent hereunder and under the Security Documents may
be exercised by Collateral Agent without the necessity of the joinder of any
other Party, unless otherwise required by Applicable Law. If Collateral Agent
shall request instructions from the Required Secured Parties with respect to any
act or action (including the failure to act) in connection with this Agreement
or any of the Security Documents, Collateral Agent shall be entitled to refrain
from such act or taking such action, unless and until Collateral Agent shall
have received unambiguous
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instructions from the Required Secured Parties (in which event it shall be
required to act in accordance with such instructions unless otherwise excused,
as provided herein); and Collateral Agent shall not incur any liability to any
Person for so refraining. Without limiting the foregoing, no Secured Party shall
have any right of action whatsoever against Collateral Agent as a result of
Collateral Agent's acting or refraining from acting hereunder or under any of
the Security Documents pursuant to or in accordance with the instructions of the
Required Secured Parties, except for Collateral Agent's own gross negligence or
willful misconduct in connection with any action taken, or omitted to be taken
by it. Notwithstanding anything to the contrary contained in this Agreement or
any of the Security Documents, Collateral Agent shall not be required to take
any action that is, in its opinion, contrary to Applicable Law or the terms of
any of the Security Documents or that would, in its reasonable opinion, subject
it or any of its officers, employees, or directors to personal liability.
(d) Collateral Agent shall not be responsible in any
manner whatsoever for the correctness of any recitals, statements,
representations, or warranties contained herein, in any of the Security
Documents or the Transaction Documents. Collateral Agent makes no representation
or warranty as to (i) the value, location, existence, or condition of any
Collateral; (ii) the financial condition of any Obligor or the title of any of
the Obligors to any of the Collateral; (iii) the sufficiency of the security
afforded by this Agreement or the Security Documents; (iv) the validity,
perfection, or priority of any Lien with respect to the Collateral, or (v) the
validity, proper execution, enforceability, legality, or sufficiency of this
Agreement, the Guarantee and Collateral Agreement, or any of the other Security
Documents; and Collateral Agent shall have no liability or responsibility in
respect of any such matters. Collateral Agent shall not be required to ascertain
or inquire as to the performance by any Obligor of any of its covenants or
obligations hereunder or under any of the Transaction Documents or Security
Documents.
(e) Collateral Agent shall not be responsible for
insuring any of the Collateral, for the payment of taxes, charges, assessments,
or Liens upon any of the Collateral or for the maintenance or safeguarding of
any Collateral, except as provided in the immediately following sentence when
Collateral Agent has possession of any Collateral. Collateral Agent shall have
no duty to any of the Obligors or Secured Parties with respect to any Collateral
in Collateral Agent's possession or control or in the possession or control of
any agent or nominee of Collateral Agent or any income thereon or for the
preservation of rights against prior parties or any other rights pertaining
thereto, except the duty to accord such Collateral in Collateral Agent's actual
possession substantially the same degree of care as Collateral Agent accords its
own assets and the duty to account for monies received by it.
(f) Collateral Agent shall not be deemed to have actual,
constructive, direct, or indirect notice or knowledge of the occurrence of any
Event of Default under any Transaction Document, unless and until Collateral
Agent shall have received a Default Notice or a written notice from any of the
Obligors addressed to Collateral Agent in its capacity as Collateral Agent,
stating unequivocally that an Event of Default has occurred. Collateral Agent
shall have no obligation, either prior to or after receiving any such notice, to
inquire whether an Event of Default has, in fact, occurred and shall be entitled
to rely conclusively, and shall be fully protected in so relying, upon any
notice so furnished to it.
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(g) If Collateral Agent shall receive any written request
from any Obligor for consent to or approval of any matter relating to any
Collateral or such Obligor's obligations with respect thereto or there shall be
due from Collateral Agent under the provisions of the Security Documents any
performance or the delivery of any instrument, then, in such event, Collateral
Agent shall send to each of the Notice Parties a notice setting forth in
reasonable detail (i) an account of the matter as to which such consent or
approval has been requested or the performance or instrument requested, as the
case may be, and (ii) Collateral Agent's proposed course of action with respect
thereto and the Collateral Agent shall take action with respect to such
requested consent or approval at the direction of the Required Secured Parties.
Notwithstanding the foregoing, no such consent or approval of Secured Parties
shall be required with respect to any action taken in accordance with the
provisions of Section 9 hereof or with respect to any consent, determination, or
other matter that is, in Collateral Agent's reasonable judgment, ministerial or
administrative in nature.
(h) Each Secured Party hereby acknowledges and represents
that it has, independently and without reliance upon Collateral Agent or any of
the other Secured Parties, and based upon such documents, information, and
analyses as it has deemed appropriate, made its own credit analysis of each
Obligor and its own decision to enter into this Agreement and the other
Transaction Documents to which it is a party, and each Secured Party has made
such inquiries concerning the Transaction Documents, the Security Documents, the
Collateral, and each Obligor as such Secured Party feels necessary and
appropriate. Each Secured Party hereby acknowledges that it shall, independently
and without reliance upon the other Secured Parties or Collateral Agent, and
based upon such financial statements, documents, and information as it deems
appropriate at the time, continue to make and rely upon its own credit decisions
in extending credit or in taking or refraining to take any action under this
Agreement or any of the Transaction Documents. Except for notices and reports
expressly required to be furnished to Notice Parties by Collateral Agent
hereunder, Collateral Agent shall not have any duty or responsibility to provide
any Secured Party with any notices, reports, or certificates furnished to
Collateral Agent by any Obligor or any credit or other information concerning
the affairs, financial condition, business, or properties of any Obligor that
may come into the possession of Collateral Agent or any of Collateral Agent's
Affiliates.
(i) Collateral Agent shall be fully entitled to rely
upon, and shall be fully protected in relying and acting upon, any communication
in whatever form believed by Collateral Agent in good faith to be genuine and
correct and to have been signed, sent, or made by a proper Person or Persons.
3. RESIGNATION AND REMOVAL OF COLLATERAL AGENT; APPOINTMENT OF SUCCESSOR.
(a) Collateral Agent may resign, on 90 days prior written
notice to Notice Parties, and may be removed for or without cause at any time by
the Required Secured Parties. In the event of any resignation or removal, the
Required Secured Parties shall have the right to appoint a successor Collateral
Agent, but, if the Required Secured Parties have not appointed a successor
Collateral Agent within 90 days after the retiring Collateral Agent's giving of
notice of resignation or its removal, the retiring Collateral Agent shall, on
behalf of Secured Parties, appoint a successor Collateral Agent (which shall, in
all events, be a commercial bank having combined capital and surplus of at least
$200,000,000). Upon the acceptance of any
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appointment as Collateral Agent hereunder by a successor, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall be discharged from its duties and obligations as
Collateral Agent, as appropriate, under this Agreement and the Security
Documents.
(b) Upon the request of any successor Collateral Agent,
at the expense of Obligors, both Obligors and the predecessor Collateral Agent
shall promptly execute and deliver such instruments, conveyances, and assurances
reflecting terms consistent with the terms of the Security Documents then in
effect and do such other things as may be reasonably required for more fully and
certainly vesting and confirming in such successor Collateral Agent its interest
in and Liens upon the Collateral and all rights, powers, duties, and obligations
of the predecessor Collateral Agent hereunder and under the Security Documents;
and the predecessor Collateral Agent shall also promptly assign and deliver to
the successor Collateral Agent any Collateral subject to the Lien of the
Security Documents that may then be in its possession.
(c) Any entity into which Collateral Agent may be merged
or with which it may be consolidated, or any entity resulting from any merger or
consolidation to which Collateral Agent shall be a party, or any state or
national bank or trust company in any manner succeeding to the business of
Collateral Agent, as a whole or substantially as a whole, shall be the successor
of Collateral Agent hereunder without the necessity for execution or filing of
any paper or any further act on the part of any of the Parties hereto, anything
to the contrary contained herein notwithstanding.
4. COMPENSATION AND EXPENSE REIMBURSEMENT OF COLLATERAL AGENT.
(a) Collateral Agent shall be entitled to compensation as
provided for in a separate letter agreement with Obligors. Obligors shall
promptly (and, in any event, on demand) reimburse Collateral Agent for all costs
and expenses incurred in the negotiation, documentation, and closing of the
transactions contemplated by this Agreement and the Security Documents,
including legal fees, Recording Costs, title insurance premiums, appraisal
costs, survey costs, and environmental consulting costs.
(b) Obligors shall promptly (and, in any event, on
demand) reimburse Collateral Agent for all costs and expenses (including all
Extraordinary Expenses) actually incurred by Collateral Agent in the execution
of any of Collateral Agent's duties hereunder or under any Security Document or
in the exercise of any right or power herein or therein imposed or conferred
upon it (excluding, however, general overhead expenses); and each Creditor
agrees promptly to pay to Collateral Agent, on demand, such Creditor's
Percentage of any such reimbursement for expenses (including Extraordinary
Expenses) that is not timely made by Obligors to Collateral Agent.
5. COLLATERAL AGENT AS A SECURED PARTY. If a Secured Party serves as
Collateral Agent (as will be the case for so long as Wachovia is Collateral
Agent), such Secured Party, acting in its capacity as such, shall have the same
rights and powers as any other Secured Party under this Agreement or its
Transaction Documents with any Obligor and may have commercial relations
15
or otherwise deal with any Obligor, any other Secured Party, or any Person
having relations with an Obligor or a Secured Party.
6. CO-AGENTS. Collateral Agent shall have power to appoint one or more
Persons to act as a co-agent or co-agents, jointly with Collateral Agent, or a
separate agent or separate agents, of all or any part of the Collateral, and to
vest in such Person or Persons, in such capacity, such title to the Collateral
or any part thereof, and such rights, powers, duties, trusts or obligations as
Collateral Agent, with the consent of the Required Secured Parties, may consider
necessary or desirable, in any case only for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Collateral may at the
time be located. Absent any specific agreement to the contrary, any co-agent or
co-agents appointed hereunder shall, to the extent applicable, have the rights,
obligations and duties of Collateral Agent hereunder.
7. SHARING PAYMENTS.
(a) Except as otherwise provided in paragraphs (b) and
(d) below, prior to Collateral Agent's receipt of a Default Notice relating to a
Material Event of Default, each Secured Party shall be entitled to receive
payments on account of its Secured Debt in accordance with the present tenor of
the Transaction Documents evidencing its Secured Debt, but not optional
pre-payments or payments after acceleration of the maturity of such Secured
Debt; provided, however, that the Revolver Banks shall be entitled to receive
and retain (and, subject to Section 10(g), shall not be required to share)
payments or pre-payments that are made to the Revolver Banks with respect to
Secured Debt owing under the Revolver Bank Documents (i) for so long as the
Revolver Commitments of the Revolver Banks have not been terminated, and (ii) in
any case (prior to acceleration of amounts owing under the Revolver Credit
Agreement), to the extent the Revolver Banks' Actual Principal Outstanding
Amount is greater than their Adjusted Principal Outstanding Amount.
(b) If, prior to Collateral Agent's receipt of a Default
Notice relating to a Material Event of Default, any Secured Party shall receive
any Guarantor Payments, Realization Proceeds, Setoff Proceeds, Insurance
Proceeds that are not required to be turned over to the Obligors, optional
prepayments (except as provided in the proviso to Section 7(a)) or payments due
after acceleration of the maturity of such Secured Debt other than from the
Collateral Agent, such Secured Party shall promptly turn over such payments to
Collateral Agent, which shall promptly distribute such payments to all of the
Secured Parties, in accordance with their respective Percentages of the amount
of such payments for application to the Secured Debt owing to each Secured Party
in accordance with the terms of its Transaction Documents.
(c) After Collateral Agent's receipt of a Default Notice
relating to a Material Event of Default (but prior to receipt of written notice
from Required Secured Parties that such Material Event of Default has been
waived or is no longer continuing), (i) Collateral Agent shall share with
Secured Parties all Shared Payments received by Collateral Agent (in the manner
described in Section 10 below) and (ii) any Shared Payments received by any
Secured Party shall be promptly turned over to Collateral Agent and promptly
distributed by Collateral Agent for the benefit of Secured Parties in accordance
with Section 10 below (provided that, prior to acceleration of the Secured Debt
under the Revolver Credit Agreement, the Revolver Banks shall not be required to
turn over to Collateral Agent any payments or pre-payments made to
16
the Revolver Banks on their Secured Debt to the extent the Revolver Banks'
Actual Principal Outstanding amount is greater than their Adjusted Principal
Outstanding Amount).
(d) Wherever in this Section 7 any Secured Party is
required to turn over to Collateral Agent any monies received by such Secured
Party, such Secured Party, pending such turn over, shall be deemed to hold such
monies as trustee of an express trust for the benefit of all of the Secured
Parties and shall not commingle such monies with any other property or assets of
such Secured Party. Obligors agree that any monies received by a Secured Party
that is turned over by such Secured Party to Collateral Agent as provided in
this Section 7 or as provided in Section 12(c) hereinbelow, shall not have the
effect of reducing the Secured Debt owing to such Secured Party and shall not be
treated as a payment with respect to the Secured Debt of the Secured Party. To
the extent that any Revolver Bank receives from Collateral Agent any monies
turned over to Collateral Agent by a Secured Party pursuant to the provisions of
this Section 7, the amount of monies so received by such Revolver Bank shall
have the effect of reducing the Revolver Commitment of such Revolver Bank on a
dollar-for-dollar basis.
8. ADDITIONAL COLLATERAL.
(a) Each Secured Party hereby covenants and agrees that
(i) such Secured Party shall not accept from any Person (including any Obligor)
or otherwise hold any guaranty (a "Third-Party Guarantee"), other than the
Global Guarantee, of any of the Secured Debt, unless such guarantor also
guarantees substantially contemporaneously, by the same or separate instrument,
the payment of all of the Secured Debt owing to all Secured Parties (or, if such
Third-Party Guarantee guarantees only a portion thereof owing to such Secured
Party, such Secured Party shall not accept such Third-Party Guarantee, unless
such Guarantor simultaneously guarantees the same proportion of Secured Debt
owing to the other Secured Parties); provided that the Elcatex Guarantee and the
Russell Europe Guarantee shall be exempt from the requirements of this clause
(i); and (ii) such Secured Party shall not take, accept, obtain or hold any Lien
(an "Additional Lien") upon any assets of any Obligor or any other Person to
secure the payment and performance of any of the Secured Debt under the
Transaction Documents (except (x) liens on the property of Elcatex held by Term
Lender and (y) liens of a Letter of Credit Issuer from time to time on the goods
with respect to which the applicable Letter of Credit was issued), except by
virtue of Collateral Agent being granted a Lien upon such assets, in either
case, pursuant to documents in form and substance satisfactory to the Required
Secured Parties, to secure the Secured Debt in accordance with the terms hereof.
(b) The Global Guarantee shall be deemed to supersede any
guaranties (except for the Elcatex Guarantee and the Russell Europe Guarantee)
in favor of a Secured Party from an Obligor that forms a part of the Transaction
Documents of such Secured Party. In no event shall any Secured Party be
authorized to enforce the Global Guarantee except through the Collateral Agent
after a Material Event of Default under the Transaction Documents to which such
Secured Party is a party.
9. DEFAULT NOTICE; ENFORCEMENT.
(a) Promptly after having obtained actual knowledge
thereof, each Secured Party shall deliver to the Collateral Agent and each other
Notice Party a notice in writing (a
17
"Default Notice") of any Event of Default under Transaction Documents to which
such Secured Party is a party, identifying the nature of the Event of Default
and the Transaction Document under which such Event of Default arose; provided,
however, that no such notice need be given to the extent that such Event of
Default is waived or cured by amendment prior to the time a Default Notice is
delivered. Neither a failure to give nor any delay in giving any such Default
Notice shall impair any rights or result in any liability under this Agreement,
any of the Security Documents, or any of the Transaction Documents.
(b) Promptly after having obtained actual knowledge of an
Event of Default under any of the Security Documents (other than an Event of
Default resulting from any cross-default under any of the Transaction
Documents), Collateral Agent shall deliver to each Notice Party a notice in
writing, identifying the nature of the Event of Default and the Security
Document under which such Event of Default arose; provided, however, that no
such notice need be given to the extent that such Event of Default is waived or
cured by amendment prior to the time such notice is delivered. Neither a failure
to give nor any delay in giving any such notice shall impair any rights or
result in any liability under this Agreement or any of the Security Documents.
(c) After the Collateral Agent's receipt of a Default
Notice relating to a Material Event of Default, upon Collateral Agent's receipt
of an Enforcement Direction, Collateral Agent shall proceed to enforce rights
and remedies under the Security Documents, as so directed. If in connection with
any Enforcement Action any proceeds are received by Collateral Agent in property
other than cash, Collateral Agent shall convert such non-cash proceeds into cash
as promptly as possible.
(d) In no event shall any Obligor be authorized to assert
as a defense or objection to any Enforcement Action by Collateral Agent the fact
that a required notice of an Event of Default was not delivered, or was not
delivered on a timely basis, by one or more Secured Parties to Collateral Agent
or to any other Secured Party.
(e) Any Secured Party may purchase Collateral at any
public sale of such Collateral pursuant to the Security Documents, but only to
the extent that such action does not contravene any Applicable Law and only if
the consideration paid by such Secured Party is cash.
10. APPLICATION OF PAYMENTS AND PROCEEDS.
(a) All payments or proceeds turned over to Collateral
Agent by a Secured Party pursuant to Section 7(c) hereof, all Insurance Proceeds
that are received by Collateral Agent for application to the Secured Debt as
provided in Section 15, and all Realization Proceeds shall be deposited by
Collateral Agent to the Collateral Reserve Account. Subject to Section 10(b),
Section 10(c) and Section 10(e), collected balances in the Collateral Reserve
Account shall be distributed by Collateral Agent on a weekly basis, on a
Business Day fixed by Collateral Agent for the distribution of such monies,
unless the collected balances are less than $250,000 on the date of distribution
(in which event, Collateral Agent may, in its discretion, defer distribution
absent contrary written instructions from the Required Secured Parties), for
application to the Secured Debt, as follows:
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FIRST: to the payment of (i) all costs and expenses
incurred by Collateral Agent in connection with the execution of its
duties hereunder, including all Extraordinary Expenses and all expenses
for which Collateral Agent is entitled to reimbursement pursuant to
Section 4 hereof, and (ii) all amounts against or for which Collateral
Agent is to be indemnified or reimbursed under this Agreement or any of
the Security Documents;
SECOND: to the payment of any fees then owing to
Collateral Agent;
THIRD: to the payment of Cash Management Obligations,
to be shared on a pro rata basis as among the Cash Management Service
Providers to which such Cash Management Obligations are owing;
FOURTH: to the payment of all outstanding LC
Obligations, to be shared by the Letter of Credit Issuers on a pro rata
basis;
FIFTH: to the payment of costs and expenses
(including legal fees) incurred by any Creditor in connection with the
enforcement of any Transaction Documents to which it is a party or the
Global Guarantee after the occurrence and during the continuance of an
Event of Default under such Transaction Documents (provided that such
enforcement is not prohibited by the terms of this Agreement), to be
shared on a pro rata basis as among such Creditors;
SIXTH: to the payment of the principal amount of the
Loans owing to any Lender (whether or not any of such principal is then
due or has matured, by acceleration or otherwise) to the minimum extent
necessary such that the Actual Principal Outstanding Percentage for
each Lender is equal to such Lender's Adjusted Principal Outstanding
Percentage, together with accrued and unpaid interest on the principal
so paid at the rate provided in the applicable Transaction Document;
SEVENTH: to the payment of the principal amount (to
the extent not paid pursuant to Clause "SIXTH" above) of and accrued
interest with respect to the Secured Debt (and net swap amounts and any
amounts that would be owing with respect to any Swaps if such Swaps
were then terminated) owing to each Revolver Bank, Term Lender, Swaps
Lender and each Noteholder (whether or not any of such Secured Debt is
then due or has matured, by acceleration or otherwise) and Adjusted
Make-Whole Amount, if any, owing to the Noteholders, to be paid to the
holders of such Secured Debt on a pro rata basis;
EIGHTH: to the payment of fees owing to Revolver
Administrative Agent under the Revolver Bank Documents, fees owing to
the Revolver Banks under the Revolver Bank Documents (including unused
line fees, letter of credit fees, and fees for breaking funding losses
or expenses), fees and breaking funding losses or expenses owing to the
Term Lender under the Term Lender Loan Documents, and the Remaining
Make-Whole Amount, if any, owing to the Noteholders, to be shared on a
pro rata basis among the holders of such Secured Debt; and
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NINTH: to the payment of any other Secured Debt, to
be shared on a pro rata basis by the holders of such Secured Debt.
(b) If on any date payments are required to be shared
pursuant to Section 7 hereof or any Realization Proceeds are required to be
shared pursuant to Section 10 hereof, the Secured Debt on account of which such
payments or Collateral proceeds are to be shared shall include the undrawn
amount of all outstanding Letters of Credit. If any proceeds are received by
Collateral Agent with respect to any Secured Debt attributable to undrawn
Letters of Credit, such proceeds shall be deposited into an account held by
Collateral Agent, for disbursement to the Secured Party that is the issuer of
such Letter of Credit at such time as the Letter of Credit is drawn upon. If any
Letter of Credit for which cash collateral is held by Collateral Agent is
reduced or cancelled or the stated amount thereof is otherwise reduced with the
result that the outstanding Letter of Credit is reduced, then an amount equal to
the amount of such reduction shall be distributed from the collateral account by
Collateral Agent for further distribution to other Secured Parties, in
accordance with the provisions of this Agreement, in the amounts they would have
received had such expired, reduced, or cancelled Letter of Credit not been
included in the calculation of Secured Debt owing to the issuer of such Letter
of Credit.
(c) If, on any date that Collateral Agent receives any
Realization Proceeds from any Enforcement Action taken with respect to any
Collateral of Russell or any Insurance Proceeds with respect to such Collateral,
the Secured Debt owing to a Secured Party is not permitted under the Security
Documents executed by Russell to be secured by Collateral Agent's Lien upon the
Collateral owned by Russell from which such Realization Proceeds or Insurance
Proceeds were derived, then Collateral Agent shall not be authorized to
distribute any of such Realization Proceeds or Insurance Proceeds to such
Secured Party, and the amount of such Secured Party's share thereof (the
"Foregone Distribution") shall be distributed to the other Secured Parties whose
Secured Debt is permitted by such Security Documents to be secured by Collateral
Agent's Lien upon such Collateral, with the order of such distribution to be as
set forth in Section 10(a) above. Each Secured Party who suffers a Foregone
Distribution shall be authorized, on a ratable basis with all other Secured
Parties who have similarly suffered a Foregone Distribution, to receive from any
Realization Proceeds derived from an Enforcement Action with respect to
Collateral owned by any Guarantor, from any Insurance Proceeds derived from a
casualty loss of Collateral of any Guarantor and from payments made from any
Obligor the amount of such Foregone Distribution before any of such monies are
distributed to any of the other Secured Parties.
(d) Collateral Agent shall not be liable for any
allocation or distribution of monies pursuant to this Section 10 that are made
by it in good faith and, if any such allocation or distribution is subsequently
determined to have been made in error, the sole recourse of any Secured Party to
whom payment was due but not made shall be to recover from the other Secured
Parties any payment in excess of the amount to which such other Secured Parties
are determined to be entitled (and such other Secured Parties hereby agree to
return to such Secured Party any such erroneous payments received by them).
(e) If any Secured Party shall, at any time, fail to make
any payment to Collateral Agent that is required under this Agreement,
Collateral Agent may, but shall not be required to, retain payments that would
otherwise be made to such defaulting Secured Party
20
hereunder and apply such payment to such defaulting Secured Party's defaulted
obligations hereunder, at such time, and in such order, as Collateral Agent may
elect in its sole discretion.
(f) If at any time Collateral Agent shall be required to
restore or return to any Obligor (or any representative of creditors for any
such Obligor) any amounts distributed to any Secured Party pursuant to any of
the provisions of this Agreement (including, specifically, this Section 10),
whether such amounts distributed consisted of Setoff Proceeds, payments required
to be shared with Secured Parties pursuant to Section 7 hereof, Realization
Proceeds, Guarantor Payments, Insurance Proceeds, or any other amounts received
from any Obligor, whether such restoration or return is required by reason of
any Insolvency Proceeding or other similar event in respect of any Obligor, then
each Secured Party shall promptly pay to Collateral Agent the portion of the
total amount of such payments received by it which is required to be so restored
or returned.
(g) Each Lender agrees that, if the Collateral Agent
shall have received a Default Notice relating to a Material Event of Default,
and if, after six months shall have passed from the earlier of (i) the date the
Collateral Agent shall have commenced Enforcement Action on the Collateral in
accordance with Section 9(c) or (ii) the commencement of any bankruptcy
proceeding with respect to Russell, each Lender shall not have been either (x)
fully repaid in respect of the principal of the Loans of such Lender or (y)
repaid with respect to such principal in an amount sufficient so that such
Lender's Actual Principal Outstanding Percentage equals its Adjusted Principal
Outstanding Percentage, each Lender which has at such time an Actual Principal
Outstanding Percentage which is lower than its Adjusted Principal Outstanding
Percentage (each, a "Below-Formula Lender") shall pay to the Collateral Agent
for application pursuant to this Section 10(g) an amount which, if added to the
outstanding principal amount of the Loans owing to such Below-Formula Lender,
would cause such Below Formula Lender's Actual Principal Outstanding Percentage
to equal its Adjusted Principal Outstanding Percentage (with respect to each
Below-Formula Lender, its "True-Up Amount"). The Collateral Agent shall pay the
True-Up Amounts received by it to each Lender which has at such time an Actual
Principal Outstanding Percentage which is greater than its Adjusted Principal
Outstanding Percentage (each, an "Above-Formula Lender") in an amount for each
Above-Formula Lender which, if subtracted from the amount of outstanding
principal of the Loans owing to such Above-Formula Lender, would cause such
Above-Formula Lender's Actual Principal Outstanding Percentage to equal its
Adjusted Principal Outstanding Percentage. Simultaneously with such payments by
the Collateral Agent each Below-Formula Lender shall be deemed to have purchased
at face value a participation in the Loans owing to each Above-Formula Lender in
an amount equal to its ratable share of the total True-Up Amounts paid to such
Above-Formula Lender, and any subsequent repayments of amounts owing in respect
of the Loans in accordance with the terms hereof shall be applied by the
Collateral Agent accordingly. In addition, at the time each such Below-Formula
Lender purchases a participation pursuant to the immediately preceding sentence,
such Below-Formula Lender shall purchase a participation in interest owing to
such Above-Formula Lender in an amount equal to interest accrued on its ratable
portion of the True-Up Amount for such Above-Formula Lender commencing on the
date Collateral Agent shall have received the Default Notice referred to in the
first sentence of this Section 10(g) and ending on the date of such purchase.
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11. DETERMINATION OF AMOUNT OF SECURED DEBT. Whenever Collateral Agent is
authorized or required to determine the existence or amount of any Secured Debt
owed to any Secured Party for any purpose under this Agreement, Collateral Agent
shall be entitled to make such determination on the basis of one or more
certificates of a Notice Party with respect to the Secured Debt owed to such
Notice Party or its Represented Creditors. Each Notice Party agrees to give such
a certificate as to the amount of the Secured Debt owing to it or to its
Represented Creditors promptly (and in any event within 5 Business Days) after
such Notice Party's receipt of a request for such certificate from Collateral
Agent, in which such Notice Party shall itemize the various components of the
Secured Debt owing to it or its Represented Creditors, including interest,
principal, fees, or other charges. If, notwithstanding the request of Collateral
Agent, a Notice Party shall fail or refuse within 5 Business Days of such
request to certify as to the existence or amount of any Secured Debt owed to it,
Collateral Agent shall be entitled to determine such amount by such method as
Collateral Agent may, in its reasonable discretion, determine, including by
reliance upon a certificate of any Obligor; provided, however, that, promptly
following determination of any such amount, Collateral Agent shall notify such
Notice Party of such determination and thereafter shall correct any error that
such Notice Party brings to the attention of Collateral Agent. Collateral Agent
may rely conclusively, and shall be fully protected in so relying, upon any
determination made by it in accordance with the provisions of the preceding
sentence (or as otherwise directed by a court of competent jurisdiction) and
shall have no liability to any Obligors, any Secured Party, or any other Person
as a result of any action taken by Collateral Agent based upon such
determination prior to receipt of notice of any error in such determination.
Each Secured Party agrees that it shall from time to time provide such
information that is available to it to Collateral Agent as may be necessary to
enable Collateral Agent to make any calculation hereunder or otherwise required
for any purpose hereof.
12. LIEN PRIORITIES AND RIGHTS TO COLLATERAL.
(a) Notwithstanding anything to the contrary contained in
any of the Transaction Documents or any other agreement or arrangement between
any of the Parties hereto and any Obligor, whether now existing or hereafter
arising, or any Applicable Law, and notwithstanding the time, order or method of
attachment, perfection, filing or recording in respect of any Lien or any
relative rank or priority conferred by Applicable Law on any Lien, the Liens
granted or conveyed under the Security Documents in favor of Collateral Agent
with respect to the Collateral shall be senior and prior to all other Liens at
any time obtained by any Secured Party; and no Secured Party shall at any time
initiate any Enforcement Action with respect to any of the Collateral until all
of the Secured Debt owing to all other Secured Parties is fully paid.
(b) In no event shall any Secured Party challenge,
contest or dispute the validity, extent, enforceability, or priority of
Collateral Agent's Liens under the Security Documents with respect to any of the
Collateral.
(c) If any Secured Party shall at any time have
possession of any Collateral, such Secured Party shall promptly turn over such
Collateral to Collateral Agent for so long as any Secured Debt is outstanding;
provided that any cash which constitutes Collateral located in a deposit account
of an Obligor held at a Secured Party need not be turned over to Collateral
Agent
22
prior to Collateral Agent's receipt of a Default Notice relating to a Material
Event of Default and the institution of Enforcement Action, except to the extent
such amounts have become Setoff Proceeds.
13. INVESTMENT OF FUNDS HELD BY COLLATERAL AGENT. Collateral Agent shall
invest and reinvest monies held by it constituting proceeds of Collateral, or
payments or proceeds turned over to it by a Secured Party pursuant to Sections 7
and 12 hereof, from time to time in repurchase agreements with any major
national brokerage firm or bank (which may include the commercial banking
department of Collateral Agent or any bank or trust company under common control
with Collateral Agent) fully secured by obligations issued or guaranteed by the
United States of America, and subject at all times to the Liens granted pursuant
to the Security Documents. All such investments and the interest and income
received thereon and therefrom, as well as the net proceeds realized upon the
sale thereof, shall be held by Collateral Agent in the Collateral Reserve
Account, to be distributed pursuant to Section 10 hereof.
14. RELEASE OF COLLATERAL. Collateral Agent shall not execute any release
of any of the Liens under the Security Documents with respect to any of the
Collateral without the written consent or direction of the Required Secured
Parties. Collateral Agent shall not be responsible for any release of Liens
under the Security Documents, to the extent that such release results under
Applicable Law from any sale, transfer, exchange, or other disposition of
Collateral by any Obligor, whether or not any such disposition is authorized
under any of the Security Documents. If any Obligor desires to sell, exchange,
transfer, or otherwise dispose of any Collateral, such Obligor shall deliver a
certificate to Collateral Agent, describing the proposed disposition and the
material terms thereof, whereupon Collateral Agent shall promptly forward a copy
of such certificate to each Notice Party. Collateral Agent is authorized and
instructed to take such actions with respect to such Collateral as the Required
Secured Parties so authorize and instruct in written instructions delivered to
Collateral Agent with respect to such proposed disposition, including the
execution and delivery of Lien releases and such other waivers and amendments to
the Security Documents as may be required in connection therewith. Such
instructions from the Required Secured Parties shall specify the minimum amount
of proceeds that must be received by Collateral Agent in exchange for such Lien
releases, waivers, or amendments and, if applicable, (i) the requirements, if
any, regarding Liens that must be taken by Collateral Agent in non-cash proceeds
from the proposed disposition and (ii) the amount, if any, of such proceeds to
be released by Collateral Agent to Obligors. If Collateral Agent requests a
Secured Party's consent to Collateral Agent's release of its Lien upon any
Collateral having an aggregate value less than $1,000,000 and Collateral Agent
does not receive a denial of such request within 4 Business Days after the
Secured Party receives such request, such Secured Party shall be deemed to have
consented to such request. Notwithstanding the foregoing provisions of this
Section, Secured Parties hereby irrevocably authorize Collateral Agent to
execute releases of Liens as expressly provided for and contemplated by the
Guarantee and Collateral Agreement or any of the other Security Documents.
15. INSURANCE. Obligors shall be obligated to maintain property, casualty,
liability, and other insurance in accordance with the terms of the Security
Documents, with Collateral Agent named as loss payee and an additional insured,
as appropriate. Collateral Agent shall not be deemed to have any notice or
knowledge of any casualty loss under any insurance maintained by any Obligor,
unless and until Collateral Agent shall have received written notice from a
Secured
23
Party or an Obligor of the existence and nature of such casualty loss.
Collateral Agent shall be authorized to turn over to Obligors all or any portion
of any Insurance Proceeds received by Collateral Agent, to the extent that
Collateral Agent reasonably believes that such turnover of such amount of
Insurance Proceeds is authorized or required by the Security Documents;
provided, however, that after the Collateral Agent's receipt of a Default Notice
relating to a Material Event of Default, such turnover shall be made only if
required by the Security Documents. Any Insurance Proceeds that are received by
Collateral Agent and are not turned over to Obligors shall be distributed to
Secured Parties for sharing, prior to Collateral Agent's receipt of a Default
Notice relating to a Material Event of Default, in accordance with Section 7(b)
hereof, and after Collateral Agent's receipt of a Default Notice relating to a
Material Event of Default, in accordance with Section 10 hereof.
16. INDEMNIFICATION.
(a) Without in any way limiting any Obligor's indemnity
obligations under any of the Security Documents, each Obligor agrees to
indemnify, defend, and hold Collateral Agent and its agents, successors, and
assigns (each an "Indemnified Agent Party") harmless from and against any and
all liabilities, obligations, losses, damages, claims, penalties, actions,
judgments, suits, costs, expenses, or disbursements of any kind or any nature
whatsoever ("Losses") that may be imposed upon, incurred by, or asserted against
any Indemnified Agent Party in any way relating to or arising out of this
Agreement or any of the Security Documents or any action taken or omitted to be
taken by any Indemnified Agent Party under this Agreement or any of the Security
Documents, except any such as result from an Indemnified Agent Party's bad
faith, gross negligence or willful misconduct. If any taxes (excluding taxes
imposed upon or measured solely by the net income of Collateral Agent, but
including any intangibles tax, stamp tax, recording tax, or franchise tax) shall
be payable by Collateral Agent or any Obligor on account of the execution,
delivery, or recording of any of the Security Documents, Obligors shall jointly
and severally pay (or shall promptly reimburse Collateral Agent for the payment
of) all such taxes, including any interest and penalties thereon, and shall
indemnify and hold each Indemnified Agent Party harmless from and against all
liability in connection therewith.
(b) Without limiting the Obligations of Obligors
hereinabove, each Creditor severally agrees to indemnify and hold each
Indemnified Agent Party (to the extent not reimbursed by Obligors), in
proportion to its Percentage as of the date on which such Losses are incurred,
harmless from and against any and all Losses that may be imposed upon, incurred
by, or asserted against any Indemnified Agent Party in any way relating to or
arising out of this Agreement or any of the Security Documents or any action
taken or omitted to be taken by any Indemnified Agent Party under this Agreement
or any of Security Documents, except any such as result from such Indemnified
Agent Party's bad faith, gross negligence, or willful misconduct. Without
limiting the foregoing, each Creditor shall reimburse Collateral Agent promptly
on demand in proportion to its Percentage as of the date on which such
out-of-pocket expenses are incurred, for all reasonable out-of-pocket expenses
paid or incurred by Collateral Agent (including all Recording Costs and fees and
expenses of counsel to Collateral Agent) in connection with the negotiation,
preparation, approval, review, execution, delivery, administration, amendment,
modification, and interpretation of this Agreement or any of the Security
Documents or the collection and enforcement of this Agreement or any of the
Security
24
Documents, including any Extraordinary Expenses (to the extent Collateral Agent
is not reimbursed for such Extraordinary Expenses by Obligors).
(c) The foregoing indemnifications shall survive the
termination of this Agreement and any of the Security Documents and the payment
of all of the Secured Debt.
17. INDEPENDENT ACTION BY SECURED PARTIES. Each Secured Party shall be
allowed to amend, or waive compliance with, any provision of its Transaction
Documents with any Obligor, except for amendments increasing fees or rates of
interest, providing for new fees or compensation to such Secured Party, altering
the time for payment (other than to extend the time of payment) of any of the
Secured Debt or adding (or making more onerous existing) financial covenants,
defaults or mandatory prepayments, unless, in each such case, the consent of the
Required Secured Parties has been obtained (it being agreed that the execution
of a Memorandum of Understanding by the Secured Parties and Russell shall
constitute such consent for any such amendments described therein). This
Agreement shall not be deemed to restrict or prohibit any Secured Party from (a)
accelerating the maturity or demanding payment of any Secured Debt in accordance
with its Transaction Documents with Obligors; (b) enforcing any of the
Transaction Documents by judicial process or arbitration; (c) imposing any
default rate of interest in accordance with its Transaction Documents; (d)
commencing any receivership, bankruptcy, or other Insolvency Proceeding against
any Obligor; (e) participating in any bankruptcy case or other Insolvency
Proceeding, including by filing any proof of claim, or requesting adequate
protection or relief from stay, seeking dismissal or conversion or the
appointment of a trustee or examiner; (f) in the case of Revolver Banks,
reducing the amount of their Revolver Commitments; or (g) enforcing any Global
Guarantee; provided, however, that no Secured Party may initiate any Enforcement
Action with respect to any of the Collateral except as provided in Section
12(a).
18. NO PREFERENTIAL TREATMENT. No Obligor shall offer to any Secured Party
any benefit or consideration (whether immediate or prospective, definite or
contingent) of any kind to induce any Secured Party's consent to an amendment or
waiver of this Agreement or any of the Security Documents without concurrently
offering a comparable benefit or consideration to each other Secured Party as an
inducement to obtain its consent to such an amendment or waiver; and no Secured
Party shall accept from any Obligor, or any other Person, any such benefit or
consideration without the prior written consent of each other Secured Party,
unless such benefit or consideration shall also be conferred upon or paid to
each other Secured Party on a pro rata basis based upon each Secured Party's
Percentage.
19. CONFLICT WITH TRANSACTION DOCUMENTS AND SECURITY DOCUMENTS. The Parties
agree that, if any provision of this Agreement is inconsistent with or contrary
to any provisions in any of the Security Documents or Transaction Documents to
which they are parties, such Parties shall, in the course of the performance of
this Agreement, treat this Agreement as controlling and superseding such
inconsistent provisions as necessary to give full effect to all provisions in
this Agreement.
20. VALIDITY OF AGREEMENT. This Agreement shall be interpreted in such a
manner as to be fully effective and valid under Applicable Law. If any provision
of this Agreement shall be held or deemed to be, or shall in fact be,
inoperative or unenforceable as applied in any particular case
25
in any jurisdiction, or in all cases because it conflicts with any other
provision or provisions hereof or with any constitution or statute or rule of
public policy, or for any other reason, such circumstance shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or rendering any other provision herein
contained invalid, inoperative or unenforceable to any extent whatsoever. Upon
the determination that any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to give effect to the original intention of
the Parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum extent possible.
21. REPRESENTATIONS OF PARTIES. Each Party represents and warrants to the
other Parties that such Party has all requisite power and authority to execute,
deliver and perform this Agreement, and that such execution, delivery and
performance have been duly authorized by all necessary action on the part of
such Party. Each holder of Secured Debt (other than Swaps Lender and any Cash
Management Services Provider) represents and warrants that the outstanding
principal amount of Secured Debt owing to it (or, in the case of a Revolver
Bank, to all Revolver Banks) on the date hereof (whether or not payable on the
date hereof), including LC Obligations and termination amounts under the Swaps,
is as set forth for such Secured Party under the column "Agreement Date
Principal Outstanding Amount" on Schedule 1 hereto.
22. NOTICES. Notices hereunder that are required or permitted to be given
to a Party shall be given to such Party at the address or telecopy number set
forth on the signature page hereto for such Party or at such address or telecopy
number as may be designated by such Party in a written notice to Collateral
Agent and each of the other Parties (or, in the case of a Transferee, as set
forth in the acknowledgment letter or other agreement or instrument that such
Party delivers to Collateral Agent pursuant to Section 28(b) hereof or, if such
Party fails to deliver any such agreement or instrument, such address or
telecopy number as may be designated by any such Party in a written notice to
Collateral Agent, with copies to the other Parties). All such notices and
communications to a Party hereto shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number provided for such Party, (iii) the Business Day
following the day on which the same has been delivered prepaid or pursuant to an
invoice arrangement to a reputable national overnight air courier service, or
(iv) the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid; in each case to such Party at the
address or telecopy number provided for such Party. Any notice or direction
received by Collateral Agent from any Notice Party shall be deemed to have been
given by and shall be binding upon each Represented Creditor for which such
Notice Party serves as agent, and any notice given by Collateral Agent to any
Notice Party serving as agent for any Represented Creditor shall be deemed to
have been given to and received by such Represented Creditors.
23. RELATION OF SECURED PARTIES. No Secured Party shall be deemed to be an
agent or fiduciary for any other Secured Party or to have assumed any duty to
share with or disclose to any other Secured Party any information regarding any
Obligor or the Collateral. Nothing contained in this Agreement, and no action
taken by any of the Secured Parties pursuant hereto is intended to constitute or
be deemed to constitute the Secured Party as a partnership, association, joint
venture, or other entity.
26
24. FURTHER ASSURANCES. Each of the Parties hereto agrees to execute and
deliver all such further documents and instruments and to use its best efforts
to take all such further action as may be reasonably necessary or advisable to
implement and give effect to the transactions contemplated hereby or by any of
the Security Documents.
25. COUNTERPARTS. This Agreement may be executed in as many counterparts as
the Parties hereto may deem necessary or convenient and by different parties on
separate counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall constitute but one and the same
agreement.
26. ENTIRE AGREEMENT. This Agreement embodies the entire understanding of
the Parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, if any, relating to the subject matter
hereof.
27. AMENDMENTS.
(a) This Agreement may not be amended or waived except by
a writing signed by the Required Secured Parties; provided, however, that (i)
any amendment adversely affecting any right or interest of Collateral Agent
shall require Collateral Agent's consent, (ii) any amendment expanding the
obligations or liabilities of any Obligor shall require such Obligor's consent,
and (iii) no amendment shall be effective without the signature of each Secured
Party to the extent such amendment alters (A) the allocation of the security for
the Secured Debt provided for by the terms hereof, (B) provisions regarding the
sharing of any payments provided for hereunder after delivery of a Default
Notice relating to a Material Event of Default or the sharing of additional
collateral and guarantees, (C) the percentage or composition of Secured Parties
required to cause the Collateral Agent to take any action hereunder (other than
such changes in composition as result from any assignment of rights hereunder in
accordance with Section 28(b)) (D) the scope of the rights of Secured Parties to
take independent actions with respect to their Transaction Documents or any
Collateral, (E) the definition of "Required Secured Parties," or (F) Section 18,
Section 19 or this Section 27.
(b) Collateral Agent shall not enter into any amendments
to any of the Security Documents without the prior written consent of the
Required Secured Parties; provided, however, that (i) Collateral Agent may enter
into any amendment of or supplement to any of the Security Documents for the
purpose of correcting any errors therein, adding Collateral, perfecting Liens
granted under the Security Documents, or otherwise expanding the scope or nature
of the rights or remedies of Collateral Agent thereunder for the benefit of the
Secured Parties; and (ii) Collateral Agent shall not enter into any amendments
to or modifications of any of the Security Documents that would have the effect
of releasing any Lien upon any of the Collateral, except as otherwise authorized
by Section 14 hereof relating to Collateral Agent's release of Liens.
28. BINDING EFFECT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors, assigns, and
legal representatives, including any
27
subsequent holder of any Secured Debt, subject to the provisions of paragraph
(b) of this Section 28 below.
(b) In connection with any assignment of all, or of a
proportionate part of all, of its rights, title, and interest under any
Transaction Document to any Person ("Transferee"), all in accordance with the
applicable provisions of the relevant Transaction Document, such Transferee
shall become a Creditor and Secured Party hereunder only upon the delivery of,
and each Secured Party hereby covenants and agrees that, prior to the
effectiveness of any transfer by it, it shall cause to be delivered to the
Collateral Agent, a supplement to this Agreement in the form of Exhibit A hereto
executed by such Transferee.
(c) No provision of this Agreement shall restrict in any
manner the assignment, participation, or other transfer by any Secured Party of
all or any part of its right, title, or interest under any Transaction Document;
provided, however, that, unless Transferee becomes a Secured Party for purposes
hereof in accordance with this Section 28, the transferor Secured Party shall
remain responsible for performance of all of its obligations under this
Agreement (including its indemnification obligations) with respect to the
interests transferred.
29. CHALLENGES TO CLAIMS. Each of the Creditors agrees that it will not
take any action to challenge, contest or dispute the validity or enforceability
of any other Creditor's claims against any Obligor (other than any such claim
resulting from any breach of this Agreement or any acts or omissions of a
Creditor occurring after the date of this Agreement), or that would have the
effect of invalidating any such claim, or support any Person who takes any such
action; provided that the foregoing shall not preclude any Creditor from
realizing any benefit that results, directly or indirectly, from any such
challenge, contest or dispute brought against any other Creditor by any third
party.
30. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Georgia.
(B) THE PARTIES HEREBY EXPRESSLY AND IRREVOCABLY AGREE
AND CONSENT THAT ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE GUARANTEE AND COLLATERAL AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT
SITTING IN THE COUNTY OF FULTON, STATE OF GEORGIA, AND, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY EXPRESSLY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH ACTION,
SUIT, OR PROCEEDING, AND EACH PARTY HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH ACTION, SUIT,
OR PROCEEDING. THE OBLIGORS SHALL BE THIRD-PARTY BENEFICIARIES OF THIS SECTION
30(B).
(C) IN ANY ACTION, SUIT, OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHT OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT, OR ANY
INSTRUMENTS OR AGREEMENTS DELIVERED IN CONNECTION HEREWITH, EACH PARTY HEREBY
AGREES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION,
SUIT, OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
28
NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION, SUIT, OR PROCEEDING.
NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY
PARTY HERETO TO SERVE ANY WRITS, PROCESS OR SUMMONSES IN ANY MANNER PERMITTED BY
APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER ANY OTHER PARTY HERETO IN SUCH
OTHER JURISDICTION, AND IN SUCH OTHER MANNER, AS MAY BE PERMITTED BY APPLICABLE
LAW.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COLLATERAL AGENT:
WACHOVIA BANK, N.A., as Collateral Agent
By:
----------------------------------------
Name:
Title:
Information for notices:
C0760
301 South College Street
Charlotte, NC 28288-0760
Attention: Roger Pelz, Senior Vice President
Telecopier: (704) 374-6319
Confirmation: (704) 374-6060
NOTEHOLDERS:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, as a Noteholder
By:
----------------------------------------
Name:
Title:
Information for notices:
c/o Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, Georgia 30346
Attention: Managing Director
Telecopier No.(770) 395-8421
Confirmation No.(770) 395-8415
with a copy to:
c/o Prudential Capital Group
1114 Avenue of the Americas
30th Floor
New York, New York 10036
Attention: Law Department
Telecopier No. (212) 626-2079
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA,
as a Noteholder
By:
----------------------------------------
Name:
Title:
Information for notices:
TIAA, Securities Investments
730 Third Avenue
New York, New York 10017-3006
Attention: Loren Archibald, Managing
Director
Telecopier No. (212) 916-6582
Confirmation No. (212) 916-4308
ALLSTATE LIFE INSURANCE COMPANY,
as a Noteholder
By:
----------------------------------------
Name:
Title:
Information for notices:
Investment Operations - Private Placements
3075 Sanders Road, Suite G4A
Northbrook, Illinois 60062-7127
Attention: Private Placements
Telecopier No. (847) 402-7032
Confirmation No. (847) 402-6672
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, as a Noteholder
BY: CIGNA INVESTMENTS, INC.
By:
----------------------------------------
Name:
Title:
Information for notices:
c/o CIGNA Retirement & Investment Services
280 Trumbull Street, H16B
Hartford, CT 06103
Attention: Steven H. Wilson
Telecopier No. 860-534-7203
Confirmation No. 860-534-4083
LETTER OF CREDIT ISSUER:
FIRST UNION NATIONAL BANK,
as Letter of Credit Issuer
By:
----------------------------------------
Name:
Title:
Information for notices:
C0760
301 South College Street
Charlotte, NC 28288-0760
Attention: Roger Pelz, Senior Vice President
Telecopier: (704) 374-6319
Confirmation: (704) 374-6060
TERM LENDER:
SUNTRUST BANK, as Term Lender
By:
----------------------------------------
Name:
Title:
Information for notices:
303 Peachtree Street, 3rd Floor
Atlanta, Georgia 30308
Attention: Laura Kahn
Telecopier No. (404) 575-2594
Confirmation No. (404) 588-7705
REVOLVER AGENT AND REVOLVER BANKS:
WACHOVIA BANK, N.A.,
as Revolver Administrative Agent and a
Revolver Bank
By:
----------------------------------------
Name:
Title:
Information for notices:
C0760
301 South College Street
Charlotte, NC 28288-0760
Attention: Roger Pelz, Senior Vice President
Telecopier: (704) 374-6319
Confirmation: (704) 374-6060
SUNTRUST BANK, as Syndication Agent and
a Revolver Bank
By:
----------------------------------------
Name:
Title:
Information for notices:
303 Peachtree Street, 3rd Floor
Atlanta, Georgia 30308
Attention: Laura Kahn
Telecopier No. (404) 575-2594
Confirmation No. (404) 588-7705
FIRST UNION NATIONAL BANK,
as Documentation Agent and a Revolver Bank
By:
----------------------------------------
Name:
Title:
Information for notices:
C0760
301 South College Street
Charlotte, NC 28288-0760
Attention: Roger Pelz, Senior Vice President
Telecopier: (704) 374-6319
Confirmation: (704) 374-6060
JPMORGAN CHASE BANK,
as a Revolver Bank
By:
----------------------------------------
Name:
Title:
Information for notices:
1411 Broadway, 5th Floor
New York, New York 10018
Attention: James A. Knight
Telecopier No. (212) 391-2102
Confirmation No. (212) 391-7679
ALIANT BANK, as a Revolver Bank
By:
----------------------------------------
Name: John J. Thomas
Title: Senior Vice President
Information for notices:
1100 Corporate Parkway
P.O. Box 383067
Birmingham, Alabama 35238
Attention: John J. Thomas
Telecopier No. (205) 408-2001
Confirmation No. (201) 408-2003
AMSOUTH BANK, as a Revolver Bank
By:
----------------------------------------
Name:
Title:
Information for notices:
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
COMERICA BANK, as a Revolver Bank
By:
----------------------------------------
Name:
Title:
Information for notices:
500 Woodward Avenue
Mail Code 3280
Detroit, MI 48226
Attention: Danielle Butler
Telecopier No.: (313) 222-3330
Confirmation No.: (313) 222-6122
SWAP LENDER:
JPMORGAN CHASE BANK,
as Swap Lender
By:
----------------------------------------
Name:
Title:
Information for notices:
1411 Broadway, 5th Floor
New York, New York 10018
Attention: James A. Knight
Telecopier No. (212) 391-2102
Confirmation No. (212) 391-7679
ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned, although not a party to the within and
foregoing Intercreditor and Agency Agreement (the "Agreement"), acknowledges
and, to the extent required, consents to the terms and conditions of the
Intercreditor and Agency Agreement. Each of the undersigned agrees to (i) pay
the compensation, indemnities and reimbursement to Collateral Agent as specified
in Section 4 thereof; (ii) refrain from making any optional pre-payments with
respect to any Secured Debt as provided in Section 7(a) (and except as otherwise
permitted by Section 7(a)); (iii) indemnify Collateral Agent in accordance with
Section 16 thereof; and (iv) forbear, as provided in Section 18, thereof, from
giving preferential treatment to any Secured Party, in each case, as such
Sections are in effect as of the date hereof unless the undersigned shall have
agreed to such modification or amendment to such Sections in writing.
Each of the undersigned agrees to execute and deliver such other
documents and instruments, in form and content reasonably satisfactory to
Collateral Agent and the Required Secured Parties, and shall take such other
action as Collateral Agent or the Required Secured Parties may reasonably
request, to effectuate and carry out the provisions of the Agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this
Acknowledgment and Agreement to be duly executed as of December 14, 2001.
RUSSELL CORPORATION
By:
----------------------------------------
Robert D. Martin
Senior Vice President
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
RUSSELL FINANCIAL SERVICES, INC.
By:
----------------------------------------
Robert D. Martin
Vice President
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8000
DESOTO MILLS, INC.
By:
----------------------------------------
Scott Mosteller
President
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
CROSS CREEK APPAREL, LLC
By:
----------------------------------------
Christopher M. Champion
Secretary
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
CROSS CREEK HOLDINGS, INC.
By:
----------------------------------------
Christopher M. Champion
Assistant Secretary
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
RUSSELL ASSET MANAGEMENT, INC.
By:
----------------------------------------
Floyd G. Hoffman
Vice President
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
RINTEL PROPERTIES, INC.
By:
----------------------------------------
Floyd G. Hoffman
Vice President
Information for notices:
Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
Attention: Legal Department
Telecopier No. (678) 742-8514
Confirmation No. (678) 742-8111
SCHEDULE 1
AGREEMENT DATE PRINCIPAL ADJUSTED PRINCIPAL
SECURED PARTY OUTSTANDING AMOUNT OUTSTANDING AMOUNT
- ----------------------------------------------------------------------------------------------------------------------------------
Revolver Banks $ 135,000,000.00 $ 173,000,000.00
- ----------------------------------------------------------------------------------------------------------------------------------
The Prudential Insurance Company of America, as a Noteholder $ 207,999,999.72 $ 207,999,999.72
- ----------------------------------------------------------------------------------------------------------------------------------
Teachers Insurance and Annuity Association of America, as a $ 2,857,142.84 $ 2,857,142.84
Noteholder
- ----------------------------------------------------------------------------------------------------------------------------------
Allstate Life Insurance Company, as a Noteholder $ 4,285,714.00 $ 4,285,714.00
- ----------------------------------------------------------------------------------------------------------------------------------
Connecticut General Life Insurance Company, as a Noteholder $ 3,142,856.68 $ 3,142,856.68
- ----------------------------------------------------------------------------------------------------------------------------------
First Union National Bank, as Letter of Credit Issuer $ 3,236,205.96 N/A
- ----------------------------------------------------------------------------------------------------------------------------------
SunTrust Bank, as Letter of Credit Issuer $ 72,389.00 N/A
- ----------------------------------------------------------------------------------------------------------------------------------
SunTrust Bank, as Term Lender $ 50,900,000.00 $ 50,900,000.00
- ----------------------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, as Swap Lender $ 0 N/A
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Exhibit A
FORM OF INTERCREDITOR AGREEMENT SUPPLEMENT
THIS INTERCREDITOR AGREEMENT SUPPLEMENT (the "Supplement") is made and
entered into as of __________, 20__, by and between
_______________________________ ("Assignor") and
__________________________________ ("Assignee"). Reference is hereby made to
that certain Intercreditor and Agency Agreement dated December 14, 2001, by and
among Collateral Agent, Noteholders, Term Lender, Swaps Lender, Letter of Credit
Issuers, Revolver Agents, and Banks (as each of such capitalized terms is
defined in that certain Intercreditor and Agency Agreement dated December 14,
2001).
W I T N E S S E T H:
WHEREAS, pursuant to that certain _____________________________ dated
as of ________________, 20__, among Assignor and Assignee, Assignor has assigned
all, or a proportionate part of all, of its right, title, and interest under the
Transaction Documents (as defined in the Agreement) to Assignee, and Assignee
has accepted such assignment; and
WHEREAS, pursuant to the terms of the Agreement, such assignment
requires the delivery of this Supplement to Collateral Agent (as defined in the
Agreement).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Assignee hereby acknowledges and agrees that it is a party to and
is bound by the terms and conditions of the Agreement, to the same degree and
extent as if it were an original signatory thereto.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Supplement as of the date first
above written.
ASSIGNEE:
By:
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Name:
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Title:
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ASSIGNOR:
By:
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Name:
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Title:
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