CONFORMED COPY
___________________________________________________________________________
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of October 21, 1998
Amended and Restated as of October 20, 1999
among
THE XXXXXXX WORKS
as Borrower
THE LENDERS REFERRED TO HEREIN,
as Lenders
and
CITIBANK, N.A.
as Agent
XXXXXXX XXXXX BARNEY INC.
Arranger
___________________________________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October
21, 1998, amended and restated as of October 20, 1999, among THE XXXXXXX
WORKS (the "Borrower"); each of the lenders that is a signatory hereto
(the "Lenders"); and CITIBANK, N.A., as Agent for the Lenders (together with
its successors in such capacity, the "Agent").
The Borrower, certain Lenders and the Agent are parties to a Credit Agreement
dated as of October 21, 1998 (as heretofore amended and modified, the "Existing
Credit Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by the making of loans) by the Lenders to the Borrower in
an aggregate principal amount not exceeding $250,000,000 at any one time
outstanding. The Borrower, the Lenders and the Agent wish to amend and restate
the Existing Credit Agreement; and accordingly, the parties hereto hereby agree
to amend the Existing Credit Agreement as set forth herein and to restate
the Existing Credit Agreement as so amended (as so amended and restated, the
"Amended and Restated Credit Agreement"):
Section 1. Definitions. Terms used but not otherwise defined herein have the
meanings given them in the Existing Credit Agreement.
Section 2. Amendments. Effective on the Effective Date (as defined below),
(i) the Existing Credit Agreement is hereby amended as set forth below, and
(ii) the Existing Credit Agreement is restated to read in its entirety as set
forth in the Existing Credit Agreement, which is hereby incorporated herein by
reference, with the amendments set forth below:
A. References in the Existing Credit Agreement to "this Agreement" and
words of similar import (including indirect references) shall be deemed to be
references to the Existing Credit Agreement as amended and restated hereby.
B. Section 1.01 of the Existing Credit Agreement is amended by inserting the
following definitions (or, in the case of any definition for a term that is
defined in the Existing Credit Agreement before giving effect to this Amendment
and Restatement, by amending and restating such definition to read in its
entirety as set forth below):
"Applicable Utilization Fee Rate" means, for each day on which the
Utilization Ratio exceeds 0.50 and (if the maturity of the Committed Advances
has been extended as provided in Section 2.07(c)) for each day after the
Termination Date regardless of the Utilization Ratio, a rate per annum equal to
(i) 0.1000% if on such date the Borrower's outstanding Long-Term Indebtedness
is rated A- or higher by Standard & Poor's Ratings Group, a division of XxXxxx-
Xxxx, Inc. ("Standard & Poor's") and A3 or higher by Xxxxx'x Investors
Service, Inc. ("Moody's"), (ii) 0.1250% if on such date clause (i) is
inapplicable (including if such Long-Term Indebtedness is no longer rated by
either agency); provided that if the respective levels of the Borrower's
outstanding Long-Term Indebtedness credit ratings differ, the "Applicable
Utilization Fee Rate" will be determined based on the level one above that level
applicable to the lower of said credit ratings.
"Applicable Eurodollar Margin" means, with respect to any Interest
Period for each Eurodollar Rate Advance, (i) 0.1500% if on the date such
Eurodollar Rate Advance is made the Borrower's outstanding Long-Term
Indebtedness is rated A+ or higher by Standard & Poor's and A1 or higher by
Moody's, (ii) 0.1900% if on such date clause (i) is inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated A or higher by
Standard & Poor's and A2 or higher by Moody's, (iii) 0.2300% if on such date
clauses (i) and (ii) are inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor's and A3 or higher by
Moody's, (iv) 0.4500% if on such date clauses (i), (ii) and (iii) are
inapplicable and the Borrower's outstanding Long-Term Indebtedness is rated BBB+
or higher by Standard & Poor's and Baa1 or higher by Moody's, (v) 0.4750% if
on such date clauses (i), (ii), (iii) and (iv) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated BBB or higher by Standard
& Poor's and Baa2 or higher by Moody's, and (vi) 0.6750% if on such date
clauses (i), (ii), (iii), (iv) and (v) are inapplicable (including if such Long-
Term Indebtedness is no longer rated by either agency); provided that if the
maturity of any Eurodollar Rate Advance has been extended pursuant to Section
2.07(c), the Applicable Eurodollar Margin shall mean, with respect to any
Interest Period for each Eurodollar Rate Advance from and after the Termination
Date, the sum of (x) the rate determined according to the foregoing provisions
plus (y) 0.2500%; provided further that if the respective levels of the
Borrower's outstanding Long-Term Indebtedness credit ratings differ, the
"Applicable Eurodollar Margin" will be determined based on the level one above
that level applicable to the lower of said credit ratings.
"Applicable Facility Fee Rate" means, as of any date of payment of the
fee required by Section 2.03, a rate per annum equal to (i) 0.0500% if on such
date the Borrower's outstanding Long-Term Indebtedness is rated A+ or higher
by Standard & Poor's and A1 or higher by Moody's, (ii) 0.0600% if on such
date clause (i) is inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A or higher by Standard & Poor's and A2 or higher by
Moody's, (iii) 0.0700% if on such date clauses (i) and (ii) are inapplicable
and the Borrower's outstanding Long-Term Indebtedness is rated A- or higher by
Standard & Poor's and A3 or higher by Moody's, (iv) 0.1000% if on such date
clauses (i), (ii) and (iii) are inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated BBB+ or higher by Standard & Poor's and Baa1 or
higher by Moody's, (v) 0.1500% if on such date clauses (i), (ii), (iii) and
(iv) are inapplicable and the Borrower's outstanding Long-Term Indebtedness is
rated BBB or higher by Standard & Poor's and Baa2 or higher by Moody's, and
(vi) 0.2000% if on such date clauses (i), (ii), (iii), (iv) and (v) are
inapplicable (including if such Long-Term Indebtedness is no longer rated by
either agency); provided that if the respective levels of the Borrower's
outstanding Long-Term Indebtedness credit ratings differ, the "Applicable
Facility Fee Rate" will be determined based on the level one above that level
applicable to the lower of said credit ratings.
"Termination Date" means the earlier of (a) October 18, 2000 or (b) the
date of termination in whole of the Commitments pursuant to Section 2.01(b) or
6.01.
"Utilization Ratio" means, at any time, the ratio of (i) the aggregate
outstanding principal amount of the Advances at such time to (ii) the aggregate
amount of the Commitments at such time.
C. Section 2.03(a) of the Existing Credit Agreement is amended by (i)
inserting "or (if the maturity of the Committed Advances has been extended as
provided in Section 2.07(c)) the Term Date" after the first reference to
"Termination Date" thereof and (ii) inserting "and (if the maturity of the
Committed Advances has been extended as provided in Section 2.07(c)) the Term
Date" after the second reference to "Termination Date" thereof.
D. Section 2.03 of the Existing Credit Agreement is amended by adding
new clause (c) at the end thereof as follows:
"(c) Utilization Fee. The Borrower shall pay to the Agent for the pro rata
account of the Lenders a utilization fee on the outstanding principal amount of
the Advances, for each day on which the Utilization Ratio exceeds 0.50 and (if
the maturity of the Committed Advances has been extended as provided in Section
2.07(c)) for each day after the Termination Date regardless of the Utilization
Ratio, at a rate per annum equal to the Applicable Utilization Fee Rate,
payable on each day on which a payment of interest is due under Section 2.05."
E. Section 2.07(c) of the Existing Credit Agreement is amended by deleting
the "." at the end thereof and adding new language at the end thereof as
follows:
"; and provided further that the outstanding principal amount of any
Committed Advances whose maturity has been extended to the Term Date
pursuant to this Section 2.07(c) shall bear interest at a rate per annum equal
to the sum of 0.2500% plus the interest rate otherwise applicable hereunder to
such principal amount in effect from time to time, payable on each day on which
a payment of interest is otherwise due hereunder."
F. Sections 4.01 of the Existing Credit Agreement is amended by adding new
clause (m) at the end thereof as follows:
"(m) Year 2000. The Borrower has (i) initiated a review and assessment
of all areas within its and each of its Subsidiaries' business and operations
(including those materially affected by suppliers and vendors) that could be
adversely affected by the risk that computer applications used by the Borrower
or any of its Subsidiaries (or suppliers and vendors) may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999 (the "Year 2000 Problem"), (ii) developed
plans and timetables for addressing the Year 2000 Problem on a timely basis and
(iii) to date, implemented those plans in accordance with such timetables as
amended to date. Based on the foregoing (x) each material supplier and vendor
contacted for such purpose by the Borrower or a Subsidiary of the Borrower has
represented to the Borrower or such Subsidiary, as the case may be, that the
computer applications of such supplier or vendor, as the case may be, that are
material to the Borrower's or any of its Subsidiaries' business or operations
are reasonably expected on a timely basis to be able to perform properly date-
sensitive functions for all dates before, on and after January 1, 2000 and (y)
the Borrower believes that except as set forth in the Borrower's report on Form
10-Q for the period ending July 3, 1999, all of the Borrower's and each of its
Subsidiaries' computer applications that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely basis
to be able to perform properly date-sensitive functions for all dates before, on
and after January 1, 2000, except to the extent that a failure to do so could
not reasonably be expected to have a Material Adverse Effect."
G. Schedule I of the Existing Credit Agreement is amended to read in its
entirety as set forth in Schedule I hereto.
Section 3. Representations and Warranties. The Borrower represents and
warrants to the Lenders as of the Effective Date that (i) the representations
and warranties set forth in Section 4.01 of the Existing Credit Agreement are
true and correct on and as of the Effective Date as though made on and as of the
Effective Date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific
date) and as if each reference in said Section 4.01 to "this Agreement" included
reference to the Amended and Restated Credit Agreement and as if each reference
in said Section 4.01 to "December 30, 1995" were instead a reference to "January
3, 1999" and (ii) no event has occurred and is continuing that constitutes a
Default or Event of Default (and the parties agree that breach of any of the
representations and warranties in this Section 3 shall constitute an
Event of Default under Section 6.01(b) of the Amended and Restated Credit
Agreement).
Section 4. Conditions to Effectiveness. The amendment and restatement set
forth in Section 2 hereof shall become effective on the date (the "Effective
Date") on which the Agent shall notify the Borrower that the following
conditions precedent have been satisfied (and the Agent shall promptly notify
the Lenders of the occurrence of the Effective Date):
(a) Documents. The Agent shall have received the following documents
(with sufficient copies for each Lender), each of which shall be satisfactory to
the Agent in form and substance:
(1) Execution by All Parties. Counterparts of this Amendment and
Restatement, duly executed and delivered by the Borrower, the Agent and the
Lenders.
(2) Authority and Approvals. Certified copies of the resolutions of
the Board of Directors of the Borrower (or equivalent documents) authorizing
and approving this Amendment and Restatement and the Notes, authorizing
Borrowings under the Amended and Restated Credit Agreement in an aggregate
principal amount up to but not exceeding $250,000,000 at any one time
outstanding, and certified copies of all documents evidencing other necessary
action (corporate, partnership or otherwise) and governmental approvals, if
any, with respect to this Amendment and Restatement and the Notes.
(3) Secretary's or Assistant Secretary's Certificate. A certificate of
the Secretary or an Assistant Secretary of the Borrower, dated the Effective
Date, certifying the names and true signatures of the officers of the Borrower
authorized to execute and deliver this Amendment and Restatement and the
Notes and the other documents to be delivered hereunder.
(4) Opinion of Borrower's Counsel. A favorable opinion of counsel
to the Borrower, in substantially the form of Exhibit A hereto, and as to such
other matters as the Agent or any Lender acting through the Agent may
reasonably request.
(5) Closing Certificate. A certificate of a senior financial officer of
the Borrower, dated the Effective Date, certifying the representations and
warranties set forth in Section 3 hereof are true on such date as if made on
and as of such date.
(b) Approvals. The Agent shall have received evidence satisfactory to it
of receipt of all third party consents and approvals necessary in connection
with this Amendment and Restatement (without the imposition of any conditions
except those that are acceptable to the Lenders) and that the same remain in
effect.
(c) Fees and Expenses. The Agent shall have received evidence satisfactory
to it that (i) the Borrower shall have paid in full all accrued fees, expenses
and interest due and payable to the Agent and the Lenders under the Existing
Credit Agreement, (ii) the Borrower shall have paid all accrued fees and
expenses of the Agent (including the reasonable fees and expenses of counsel to
the Agent) in connection with this Amendment and Restatement and (iii) the
Borrower shall have paid to the Agent for account of the Lenders such up-front
fees in connection with the execution of this Amendment and Restatement as the
Borrower and the Agent shall have agreed upon.
Section 5. Pro Rata Adjustments. The Borrower shall, on the Effective Date
(but only if any Advances are outstanding on said date), borrow Advances from
certain of the Lenders and/or (notwithstanding (i) the second sentence of
Section 2.07(a) of the Amended and Restated Credit Agreement requiring that
prepayments be made in accordance with said Section 2.07(a) and (ii) Section
2.09(a) of the Amended and Restated Credit Agreement requiring that payments
be made ratably in accordance with the principal amounts of the Advances held by
the Lenders) prepay Advances (together with all accrued and unpaid interest
thereon) such that, after giving effect thereto, the Advances (including,
without limitation, the principal amounts and Interest Periods thereof) shall be
held by the Lenders ratably in accordance with their respective
Commitments (after giving effect to this Amendment and Restatement).
Section 6. Miscellaneous. Except as herein provided, the Existing Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
and Restatement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same agreement and any of the
parties hereto may execute this Amendment and Restatement by signing any such
counterpart. This Amendment and Restatement shall be governed by, and construed
in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement be duly executed and delivered as of the day and year first above
written.
BORROWER
THE XXXXXXX WORKS
By ___ /s/ C.A. Douglas_____________________
Name: C.A. Xxxxxxx
Title: Treasurer
AGENT
CITIBANK, N.A.
By __/s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Vice President
LENDERS
CITIBANK, N.A.
By __/s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Vice President
WACHOVIA BANK, N.A.
By __/s/ Xxxxxxx X. Snellings____________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
BANQUE NATIONALE DE PARIS
By __/s/ Sophie Revillard Kaufman_____
Name: Sophie Revillard Xxxxxxx
Title: Vice President
By __/s/ Xxxx Abbott_______________________
Name: Xxxx Xxxxxx
Title: Assistant Vice President
BARCLAYS BANK PLC
By __/s/ Xxxxxxx Bullock_____________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By __/s/ Xxxx Lynch______________
Name: Xxxx Xxxxx
Title: Senior Vice President
ROYAL BANK OF CANADA
By __/s/ Xxxxx X. Litterini___________________
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By __/s/ Xxxxxx Bottamedi____________________
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
MELLON BANK, N.A.
By __/s/ R. Xxxx Westrich___________
Name: R. Xxxx Xxxxxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By __/s/ Xxxxx F.T. Monhart__________________
Name: Xxxxx F.T. Monhart
Title: Senior Vice President
BANKERS TRUST COMPANY
By __/s/ Xxxx Xxx Coyle_____________________
Name: Xxxx Xxx Xxxxx
Title: Managing Director
SCHEDULE I
Lenders and Commitments
Lenders Commitment
CITIBANK, N.A. $30,000,000.00
BANQUE NATIONALE DE PARIS $27,500,000.00
FLEET NATIONAL BANK $37,500,000.00
MELLON BANK, N.A. $27,500,000.00
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK $27,500,000.00
WACHOVIA BANK, N.A. $27,500,000.00
BANKERS TRUST COMPANY $25,000,000.00
BARCLAYS BANK PLC $20,000,000.00
ROYAL BANK OF CANADA $17,500,000.00
THE NORTHERN TRUST COMPANY $10,000,000.00
EXHIBIT A
[FORM OF OPINION OF GENERAL COUNSEL]
October 20, 1998
To each of the Lenders parties to the
Amended and Restated Credit
Agreement referred to below and to
Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
I am the General Counsel of The Xxxxxxx Works, a Connecticut corporation (the
"Borrower"), and have acted as counsel to the Borrower in connection with the
Amendment and Restatement dated as of October 20, 1999 (the "Amendment and
Restatement") to the Credit Agreement dated as of October 21, 1998 (the
"Existing Credit Agreement and, as amended by the Amendment and Restatement,
the "Amended and Restated Credit Agreement"), among the Borrower, certain
Lenders parties thereto (the "Lenders"), and Citibank, N.A., as Agent for said
Lenders.
This opinion is being delivered to you pursuant to Section 4(a)(4) of the
Amendment and Restatement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Amendment and
Restatement.
In rendering the opinions set forth herein, I have examined and relied on
originals or copies of the following:
(a) a counterpart executed by the Borrower of the Amendment and
Restatement;
(b) copies of the Certificate of Incorporation and Bylaws of the Borrower;
(c) a certified copy of certain resolutions of the Board of Directors of the
Borrower;
(d) certificates from public officials in the State of Connecticut as to the
good standing of the Borrower in the State of Connecticut; and
(e) such other documents as I have deemed necessary or appropriate as a
basis for the opinions set forth below.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material
to this opinion which I did not independently establish or verify, I have relied
upon written statements and certificates of the Borrower and its officers and
other representatives and of public officials.
Unless otherwise indicated, references in this opinion to the "Loan Documents"
shall mean the Amendment and Restatement and the Amended and Restated Credit
Agreement. In addition, references to (i) "Applicable Laws" shall mean the laws
and regulations of the States of Connecticut and New York and the United States
of America (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System) which are applicable to the
transactions contemplated by the Loan Documents; (ii) the term
"Governmental Authorities" means any Connecticut, New York and federal
executive, legislative, judicial, administrative or regulatory body; (iii) the
term "Applicable Contracts" shall mean the agreements and instruments set forth
in the index of exhibits to the Borrower's Annual Report on Form 10K for the
year ended , 19 filed with the Securities
and Exchange Commission and (iv) the term "Governmental Approval" means any
consent, approval, license, authorization or validation of, or filing, recording
or registration with, any Governmental Authority pursuant to any Applicable Law.
I am admitted to the bar in the States of Connecticut and New York. This
opinion is limited to the laws of the State of Connecticut, the State of New
York and the United States of America to the extent specified herein.
In rendering this opinion, I have assumed, with your consent, that:
(a) the execution, delivery or performance by the Borrower of the Loan
Documents does not and will not conflict with, contravene, violate or constitute
a default under any rule, law or regulation to which the Borrower is subject
(other than applicable laws, orders and decrees as to which I express my opinion
in paragraph 5 herein) or any agreement or instrument to which the Borrower or
the Borrower's property is subject (except and to the extent that I express my
opinion in paragraph 5 herein);
(b) and no authorization, consent or other approval of, notice to or filing
with any court, governmental authority or regulatory body (other than
Governmental Approvals as to which I express my opinion in paragraph 6 herein)
is required to authorize or is required in connection with the execution,
delivery or performance by the Borrower of any Loan Document or the transactions
contemplated thereby.
My opinions are also subject to the following assumptions and qualifications:
(a) each Loan Document constitutes the valid and binding obligation of the
Lenders and is enforceable against the Lenders in accordance with its terms;
and
(b) I express no opinion as to the effect on the opinions herein stated of (i)
the compliance or noncompliance of the Lenders with any state, federal or other
laws or regulations applicable to the Lenders or (ii) the legal or regulatory
status or the nature of the business of the Lenders.
Based upon the foregoing and such investigations that I have deemed necessary,
and subject to the limitations, qualifications, exceptions and assumptions set
forth herein, I am of the opinion that:
1. The Borrower has been duly incorporated, is validly existing and in good
standing under the laws of the State of Connecticut.
2. The Borrower has the corporate power and corporate authority to
execute, deliver and perform all of its obligations under the Loan Documents.
3. The execution and delivery of each Loan Document has been duly
authorized by all requisite corporate action on the part of the Borrower.
4. Each Loan Document has been duly executed and delivered by the
Borrower, constitutes a valid and binding obligation of the Borrower and is
enforceable against the Borrower in accordance with its terms, subject to the
following qualifications:
(i) enforcement may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law);
(ii) I express no opinion as to the enforceability of any rights to
indemnification provided for in the Loan Documents which may violate the public
policy underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation); and
(iii) I express no opinion as to the enforceability of Section 8.05 of the
Amended and Restated Credit Agreement insofar as this provision purports to
authorize a Person who has purchased a participation in Advances under the
Amended and Restated Credit Agreement to set off, appropriate or apply any
deposit or property or indebtedness of the Borrower against any obligation of
the Borrower.
5. Neither the execution, delivery or performance by the Borrower of the
Loan Documents nor the compliance by the Borrower with the terms and provisions
thereof will conflict with, contravene, violate or constitute a default under
(i) any provision of any Applicable Contract or, to the best of my knowledge,
after due investigation, any other agreement or instrument to which the Borrower
or the Borrower's property is subject, (ii) any provision of any Applicable Law,
(iii) to the best of my knowledge, after due investigation, any judicial or
administrative order or decree of any Governmental Authority or (iv) its
Certificate of Incorporation and By-laws. As used in this paragraph, "due
investigation" means solely that, as to agreements and instruments, I have
interviewed the officers of the Borrower responsible for its financing
activities, and, as to orders and decrees, I have
interviewed the lawyers under my supervision.
6. Based on my review of Applicable Laws, but without my having made
any special investigation concerning any other law, rule or regulation, no
Governmental Approval which has not been obtained or taken and is not in full
force and effect, is required to authorize or is required in connection with
the execution, delivery or performance of the Loan Documents by the Borrower.
This opinion is being furnished only to you and is solely for your benefit in
connection with the transactions contemplated by the Loan Documents and is not
to be used, circulated, quoted, relied upon or otherwise referred to for any
other purpose without my prior written consent.
Very truly yours,
