Exhibit 10.1
AMENDMENT NO. 2 dated as of September 25, 2000 among XXXXXX
& XXXXX CORPORATION (the "Borrower"), the BANKS party hereto (the "Banks"),
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent"), X.X.
XXXXXX SECURITIES INC., as Arranger, and BANK OF AMERICA N.A. and WACHOVIA
BANK OF GEORGIA, N.A., as Co-Agents.
The parties hereto are parties to a Five-Year Credit
Agreement dated as of July 1, 1999 (as amended by Amendment No. 1 dated as of
January 4, 2000 and in effect on the date hereof, the "Credit Agreement").
The Borrower has requested that the Credit Agreement be
amended to, among other things, (i) decrease pro rata the aggregate amount of
the Commitments of all Banks from $300,000,000 to $200,000,000, (ii) change
the pricing of Loans thereunder, (iii) exclude a $223.9 million special
charge to continuing operations, recorded during the Borrower's second fiscal
quarter ended July 2, 2000, from the calculation of the financial ratio
required by Section 5.07, and (iv) modify certain of the representations,
warranties and covenants of the Borrower, all as set forth herein.
Accordingly, the parties hereto agree as follows:
SECTION 1.01. DEFINITIONS; INTERPRETATION. Capitalized
terms used but not otherwise defined herein have the respective meanings
ascribed thereto in the Credit Agreement. The replacement of the Pricing
Schedule as provided by Section 1.02(8) hereof shall be deemed to have effect
from the Amendment Effective Date without retroactive effect.
SECTION 1.02. AMENDMENTS. Effective as of the Amendment
Effective Date, the Credit Agreement is amended as follows:
(1) The references on the cover page to the aggregate
amount of the Commitments are changed to refer to the aggregate amount of
$200,000,000, and the Schedule to the Credit Agreement entitled "Commitment
Schedule" is amended to read in its entirety in accordance with Schedule 1
hereto.
(2) A new definition of "Facility Fee Rate" is added to
Section 1.01 in the appropriate alphabetical location, to read as follows:
"FACILITY FEE RATE" means, a rate per annum determined in accordance
with the Pricing Schedule.
(3) A new definition of "Utilization Fee Rate" is added to
Section 1.01 in the appropriate alphabetical location, to read as follows:
"UTILIZATION FEE RATE" means a rate per annum determined in accordance
with the Pricing Schedule.
(4) Section 2.09 is amended to read in its entirety as follows:
SECTION 2.09. FEES.
(a) FACILITY FEES. The Borrower shall pay to the
Agent, for the account of the Banks ratably in proportion to
their Credit Exposures, a facility fee calculated for each day
at the Facility Fee Rate for such day on the aggregate amount
of the Credit Exposures on such day. Such facility fee shall
accrue for each day from and including the Effective Date to
but excluding the day on which the Credit Exposures are
reduced to zero. Fees accrued for the account of the Banks
under this Section shall be payable quarterly in arrears on
each Quarterly Payment Date and on the day on which the
Commitments terminate in their entirety (and, if later, on the
day on which the Credit Exposures are reduced to zero).
(b) UTILIZATION FEE. For each day on which the
aggregate outstanding principal amount of Committed Loans
equals or exceeds 25% of the aggregate amount of the
Commitments the Borrower shall pay to the Agent, for the
account of the Banks ratably in accordance with the respective
aggregate outstanding principal amounts of the Committed Loans
made by them, a utilization fee at a rate per annum equal to
the Utilization Fee Rate on the aggregate amount of the
outstanding Committed Loans, payable on each day on which
interest is payable under Section 2.07 above.
(c) AGENT'S FEE. The Borrower shall pay to the Agent,
for its own account, such agency fee as has been separately
agreed between the Borrower and the Agent.
(5) (a) Section 4.04(a) is amended by changing the date
"December 28, 1997" to "January 2, 2000", and by changing the phrase "1997
Form 10-K" to read "1999 Form 10-K, as amended".
(b) Section 4.04(b) is amended by changing the date "April
5, 1998" to "July 2, 2000", and by changing the phrase "latest Form 10-Q" to
read "Form 10-Q for the second fiscal quarter ended July 2, 2000".
(c) Section 4.04(c) is amended by changing the date "April
5, 1998" to "August 21, 2000".
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(d) Section 4.05 is amended by changing the case of the
first word thereof to the lower-case and adding immediately prior thereto the
phrase "Except as disclosed in the Borrower's 1999 Form 10-K,".
(6) Section 5.07 is amended to read in its entirety as
follows:
SECTION 5.07. OPERATING CASH FLOW RATIO. At no date
shall the ratio of (i) Consolidated Operating Cash Flow for
the four most recent consecutive fiscal quarters of the
Borrower ended on or most recently prior to such date to (ii)
Total Borrowed Funds as of such date, be less than (a) .35 for
the Borrower's fiscal quarters ending October 1, 2000 and
December 31, 2000, (b) .30 for the Borrower's fiscal quarter
ending April 1, 2001 and (c) .20 for the Borrower's fiscal
quarters ending on and after July 1, 2001.
The calculation of Consolidated Operating Cash Flow
for any period of four consecutive fiscal quarters which
includes the Borrower's fiscal quarter ending July 2, 2000
shall exclude the special charges totaling $223.9 million
incurred by the Borrower and described in Note 6 to Condensed
Consolidated Financial Statements set forth in Borrower's
Quarterly Report on Form 10-Q for its fiscal quarter ended
July 2, 2000.
(7) A new Section 5.13 is added, to read in its entirety
as follows:
SECTION 5.13. STOCK REPURCHASES. During the period
from and including September 25, 2000 to and including
December 31, 2000, the Borrower will not repurchase, or enter
into any agreement to purchase, directly or indirectly, any of
its shares of capital stock.
(8) The schedule to the Credit Agreement entitled "Pricing
Schedule" is amended in its entirety in accordance with Schedule 2 hereto.
SECTION 1.03. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Agent and the Banks as of the Amendment Effective
Date that each of the representations and warranties set forth in Article 4 of
the Credit Agreement, as amended hereby, is true on and as of the Amendment
Effective Date as if made on and as of the Amendment Effective Date.
SECTION 1.04. AMENDMENT EFFECTIVE DATE. This Agreement shall
become effective on the date (the "AMENDMENT EFFECTIVE DATE") on which the Agent
notifies the Borrower that the following conditions have been satisfied:
3
(i) EXECUTION AND DELIVERY. This Agreement shall have been
executed and delivered by the Borrower, the Agent and the Required
Banks;
(ii) FEES. The Agent shall have received evidence of payment
of (a) the up-front fee provided for in the fee letter dated as of the
date hereof between the Borrower and the Agent, (b) the Agent's fee
referred to in the letter dated of the date hereof between the Borrower
and the Agent, and (c) any costs and expenses then payable (to the
extent invoiced) under Section 1.05 hereof.
The Agent shall promptly notify the Banks of the occurrence of the Amendment
Effective Date.
SECTION 1.05. COSTS AND EXPENSES. The Borrower shall pay
all reasonable out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Agent, in connection with the
execution and delivery of this Agreement.
SECTION 1.06. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement without the prior written consent of all the
Banks.
(b) This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
(c) This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures hereto were upon the same instrument. This Agreement and the
fee letters referred to herein constitute the entire agreement and
understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof and thereof.
4
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Agent and a Bank
By:/s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
BANK OF AMERICA N.A.
By:/s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxx X. Honda
------------------------------------
Name: Xxxx X. Honda
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
CIBC INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Director
CIBC World Markets Corp.,
as Agent
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
BANCA NAZIONALE DEL LAVORO
S.P.A. NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
-0-
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI LTD.
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: X. Xxxxxx
Title: Attorney-in-fact
AMSOUTH BANK f/k/a
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxxxx X. Tutor
------------------------------------
Name: Xxxxxxxx X. Tutor
Title: Vice President
KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
THE SUMITOMO BANK, LTD.
By: /s/ C. Xxxxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxxxx Xxxxxxx
Title: Senior Vice President
UNION PLANTERS BANK, N.A.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Assistant Vice President
SCHEDULE 1
COMMITMENT SCHEDULE
Bank Commitment
---- ----------
Xxxxxx Guaranty Trust Company of New York............................................ 17,200,000
Bank of America N.A.................................................................. 17,200,000
Wachovia Bank, N.A................................................................... 17,200,000
ABN AMRO Bank N.V.................................................................... 13,200,000
The Bank of Nova Scotia.............................................................. 13,200,000
CIBC Inc............................................................................. 13,200,000
Deutsche Bank AG, New York and/or Cayman Islands Branch.............................. 13,200,000
First Union National Bank............................................................ 13,200,000
SunTrust Bank, Nashville, N.A........................................................ 13,200,000
The Northern Trust Company........................................................... 13,200,000
Banco Nazionale del Lavoro S.p.A., New York Branch................................... 8,000,000
The Bank of New York................................................................. 8,000,000
The Bank of Tokyo-Mitsubishi Ltd..................................................... 8,000,000
First American National Bank......................................................... 8,000,000
KBC Bank N.V......................................................................... 8,000,000
The Sumitomo Bank Ltd................................................................ 8,000,000
Union Planters Bank, N.A............................................................. 8,000,000
TOTAL $200,000,000
============
SCHEDULE 2
PRICING SCHEDULE
Each of "CD MARGIN", "EURO-DOLLAR MARGIN", "UTILIZATION FEE RATE" and "FACILITY
FEE RATE" means, for any date, the rates set forth below in the row opposite
such term and in the column corresponding to the "PRICING LEVEL" that applies at
such date:
-----------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
Pricing Pricing Pricing Pricing Pricing
---------------------- --------------- -------------- ---------------- --------------- --------------
CD Margin 0.625% 0.725% 1.050% 1.325% 1.875%
---------------------- --------------- -------------- ---------------- --------------- --------------
Euro-Dollar 0.500% 0.600% 0.925% 1.200% 1.750%
Margin
---------------------- --------------- -------------- ---------------- --------------- --------------
Utilization Fee 0.125% 0.125% 0.125% 0.000% 0.000%
Rate
---------------------- --------------- -------------- ---------------- --------------- --------------
Facility Fee 0.125% 0.150% 0.200% 0.300% 0.500%
Rate
-----------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the
following meanings, subject to the concluding paragraph of this Schedule:
"LEVEL I PRICING" applies at any date if, at such date, the
Borrower's long-term debt is rated BBB+ or higher by S&P OR Baa1 or higher by
Xxxxx'x.
"LEVEL II PRICING" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB or higher by S&P OR Baa2 or higher by
Xxxxx'x and (ii) Level I Pricing does not apply.
"LEVEL III PRICING" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB- or higher by S&P OR Baa3 or higher by
Xxxxx'x and (ii) neither Level I Pricing nor Level II Pricing applies.
"LEVEL IV PRICING" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BB+ or higher by S&P OR Ba1 or higher by
Xxxxx'x and (ii) none of Level I Pricing, Level II Pricing and Level III
Pricing applies.
"LEVEL V PRICING" applies at any date if, at such date, no other
Pricing Level applies.
"PRICING LEVEL" refers to the determination of which of Level I
Pricing, Level II Pricing, Level III Pricing, Level IV Pricing or Level V
Pricing applies at any date.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the
Borrower without third-party credit
enhancement, and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
If the Xxxxx'x rating and the S&P rating differ by more than one
rating level, then the applicable Pricing Level shall be one rating level
higher than the Pricing Level resulting from the application of the lower of
such ratings (for which purpose the rating level representing Level I Pricing
is deemed to be the highest rating level).
During the initial Pricing Level while either Xxxxx'x or S&P
maintain the Borrower on "credit watch" status, Level III Pricing shall be
deemed to apply.
