EXHIBIT 10.2
Execution Counterpart
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of September 13, 2002 among XXXXXXXX
CORPORATION, a New York corporation (the "Company"), the lenders party to the
Credit Agreement referred to below (the "Lenders"), and CITIBANK, N.A.
("Citibank"), as paying agent (in such capacity, together with its successors in
such capacity, the "Paying Agent").
The Company, the Lenders and the Paying Agent are parties to a
$1,500,000,000 364-Day Credit Agreement dated as of July 30, 2002 (as from time
to time amended, the "Credit Agreement"). The Company has requested the Lenders
to amend the Credit Agreement in certain respects, and the Lenders are willing
so to amend the Credit Agreement, as hereinafter set forth. Accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the Paying Agent's receipt
of counterparts this Amendment No. 1 duly executed by all of the parties hereto,
but effective as of the date hereof, the Credit Agreement is amended as follows:
A. Applicable Margin. The definition of "Applicable Margin" in
Section 1.01 of the Credit Agreement is amended to read in its entirety
as follows:
""Applicable Margin" means (a) for Eurocurrency Rate
Advances, as of any date, a percentage per annum determined by
reference to the Public Debt Rating and Leverage Ratio in
effect on such date as set forth below:
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Public Debt Rating Applicable Margin for Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Eurocurrency Rate Advances Eurocurrency Rate Advances Eurocurrency Rate Advances
When Leverage Ratio is Less When Leverage Ratio is When Leverage Ratio is
than 3.50 to 1 Equal to or Greater than Equal to or Greater than
3.50 to 1 and less than 3.75 to 1
3.75 to 1
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Level 1
-------
BBB+ or Baa1 0.650% 0.900% 1.025%
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Level 2
-------
BBB or Baa2 0.725% 0.975% 1.100%
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Xxxxx 0
-------
XXX- xxx Xxx0 1.200% 1.450% 1.575%
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Level 4
-------
Lower than Xxxxx 0 1.625% 1.875% 2.000%
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Amendment No. 1
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and (b) for Base Rate Advances, as of any date, a percentage
per annum determined by reference to the Public Debt Rating
and Leverage Ratio in effect on such date as set forth below:
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Public Debt Rating Applicable Margin for Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances When Base Rate Advances When Base Rate Advances When
Leverage Ratio is Leverage Ratio is Leverage Ratio is Equal to
Less than 3.50 to 1 Equal to or Greater than or Greater than 3.75 to 1
3.50 to 1 and less
than 3.75 to 1
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Level 1
-------
BBB+ or Baa1 0.000% 0.000% 0.000%
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Level 2
-------
BBB or Baa2 0.000% 0.000% 0.000%
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Xxxxx 0
-------
XXX- xxx Xxx0 0.000% 0.000% 0.075%
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Level 4
-------
Lower than Xxxxx 0 0.000% 0.375% 0.500%
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The Applicable Margin for each Advance shall be determined by
reference to the Public Debt Rating and the Leverage Ratio in
effect from time to time, and shall be adjusted on the basis
of the Leverage Ratio upward or downward on the third Business
Day following delivery of the certificate referred to in
Section 5.01(k)(iv); provided, that the Leverage Ratio shall
be deemed to be greater than 3.75 to 1 for so long as the
Company has not delivered such certificate as required under
Section 5.01(k)(iv)."
B. EBITDA. The definition of "EBITDA" in Section 1.01 of the
Credit Agreement is amended by inserting after the words "interest
expense" in the second line thereof the words "and distributions on
trust preferred securities".
C. Conditions Precedent to the Initial Borrowing. Section
3.02(a) of the Credit Agreement is amended to read in its entirety as
follows:
"(a) The Lenders shall have received copies,
certified by an authorized officer of the Company, of all
material filings made with any governmental authority in
connection with the Transactions that are reasonably requested
by the Paying Agent or its counsel on reasonable notice prior
to the initial Borrowing."
Amendment No. 1
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D. Leverage Ratio Definition. A new definition of "Leverage
Ratio" is added in its correct alphabetical location in Section 1.01 of
the Credit Agreement to read in its entirety as follows:
""Leverage Ratio" means the ratio of (a) Debt of the
Company and its Consolidated Subsidiaries as of any date to
(b) EBITDA of the Company and its Consolidated Subsidiaries
for the four fiscal quarters ended on or immediately prior to
such date."
E. Consolidated Net Worth. Section 5.01(e) of the Credit
Agreement is amended to read in its entirety as follows:
"(e) Consolidated Net Worth. The Company will at all
times keep and maintain Consolidated Net Worth at an amount
not less than the sum of (i) $900,000,000 plus (ii) 50% of any
positive Consolidated Net Income, which Consolidated Net
Income shall be computed on a cumulative basis as of the last
day of each fiscal year beginning with the fiscal year ending
December 31, 2002 (for the purposes of this Section 5.01(e),
Consolidated Net Income which is a deficit for any fiscal year
shall be deemed to be zero) minus (iii) up to $285,000,000 of
non-cash charges taken through Other Comprehensive Income in
accordance with GAAP in 2002 related to potential underfunding
of the Company's defined benefit pension plans plus (iv) up to
$285,000,000 of any reversals recorded through Other
Comprehensive Income in accordance with GAAP in 2003 and/or
any subsequent years of non-cash charges actually taken in
2002 pursuant to clause (iii) of this Section 5.01(e)."
F. Leverage Ratio. Section 5.01(f) of the Credit Agreement is
amended to read in its entirety as follows:
"(f) Leverage Ratio. The Company will maintain a
Leverage Ratio of not greater than 4.00 to 1 until June 29,
2003, 3.75 to 1 from June 30, 2003 through September 29, 2003
and 3.50 to 1 after September 29, 2003."
G. General. References in the Credit Agreement to "this
Agreement" (including indirect references such as "hereunder",
"hereby", "herein" and "hereof") shall be deemed to be references to
the Credit Agreement as amended hereby.
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Paying Agent and the Lenders that its making and
performance of this Amendment No. 1 have been duly authorized by all necessary
corporate action; the representations and warranties contained in Section 4.01
of the Credit Agreement are correct on and as of the date
Amendment No. 1
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hereof as though made on and as of such date (except to the extent that any
expressly relate to any earlier date); and no event has occurred and is
continuing that constitutes a Default.
Section 4. Miscellaneous. Except as expressly herein provided,
the Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Amendment No. 1 by signing any such counterpart.
This Amendment No. 1 shall be governed by, and construed in accordance with, the
law of the State of New York.
Amendment No. 1
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
XXXXXXXX CORPORATION
By __________________________________
Title:
By __________________________________
Title:
CITIBANK, N.A.,
as Paying Agent
By __________________________________
Title:
Amendment No. 1
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