Exhibit (10)
CONFORMED COPY
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of October 21, 1998
Amended and Restated as of October 18, 2000
among
THE XXXXXXX WORKS
as Borrower
THE LENDERS REFERRED TO HEREIN,
as Lenders
and
CITIBANK, N.A.
as Agent
XXXXXXX XXXXX BARNEY INC.
Arranger
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
October 21, 1998, amended and restated as of October 18, 2000, 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 (the "Existing Lenders") and the
Agent are parties to a Credit Agreement dated as of October 21, 1998 (as amended
by the Amendment and Restatement dated as of October 20, 1999 and as otherwise
amended, supplemented, modified, or amended and restated prior to the date
hereof, the "Existing Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit (by the making of loans) by the
Existing Lenders to the Borrower in an aggregate principal amount not exceeding
$250,000,000 at any one time outstanding. Each Lender identified under the
caption "New Lenders" on the signature pages hereto (collectively, the "New
Lenders") wishes to become a "Lender" party to the Existing Credit Agreement;
each Lender identified under the caption "Retiring Lender" on the signature
pages hereto (collectively, the "Retiring Lenders") wishes to cease being a
"Lender" party to the Existing Credit Agreement; and the Borrower, the Lenders
other than the Retiring Lenders and the Agent wish to extend the maturity of the
Existing Credit Agreement to October 17, 2001, decrease the aggregate amount of
the Committed Advances thereunder to $200,000,000, and to amend and restate the
Existing Credit Agreement in certain other respects; 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 "Second 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, as amended as 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.
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B. The definition of "Termination Date" in Section 1.01 of the
Existing Credit Agreement is amended to read in its entirety as set forth below:
""Termination Date" means the earlier of (a) October 17, 2001
or (b) the date of termination in whole of the Commitments
pursuant to Section 2.01(b) or 6.01."
C. Schedule I of the Existing Credit Agreement is amended to
read in its entirety as set forth in Schedule I hereto and the aggregate amount
of the Commitments shall, from and after the Effective Date, be $200,000,000.
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 Second 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 1, 2000" 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 Second 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 Second
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 Second Amendment and Restatement and the Notes,
authorizing Borrowings under the Second Amended and Restated Credit Agreement in
an aggregate principal amount up to but not exceeding $200,000,000 at any one
time outstanding, and certified copies of all documents evidencing other
necessary action (corporate, partnership or otherwise) and governmental
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approvals, if any, with respect to this Second Amendment and Restatement of
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 Second 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 or 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 Second 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 Second 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 Second 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 Second Amended and Restated Credit Agreement
requiring that prepayments be made in accordance with said Section 2.07(a)
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and (ii) Section 2.09(a) of the Second 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
respectiveCommitments (after giving effect to this Second Amendment and
Restatement).
Section 6. New Lenders; Retiring Lenders.
(a) On the Effective Date, each New Lender shall be deemed to
be, and shall have all of the rights and obligations of, a "Lender" for all
purposes of the Second Amended and Restated Credit Agreement. The initial
Applicable Lending Office and initial address for notices under the Second
Amended and Restated Credit Agreement for each New Lender is specified in the
administrative questionnaire heretofore returned by such Lender to the Agent.
(b) On the Effective Date, each Retiring Lender shall, subject
to the payment to such Retiring Lender of all Advances and other amounts due and
payable to such Retiring Lender under the Existing Credit Agreement (including,
without limitation, all accrued interest and fees and any amounts payable to
such Retiring Lender under Section 8.04(b) of the Existing Credit Agreement),
cease to have any of the rights and obligations of a "Lender" under the Second
Amended and Restated Credit Agreement, provided however that the obligations of
each Retiring Lender under Section 7.05 of the Second Amended and Restated
Credit Agreement shall continue with respect to events or circumstances
occurring on or before the Effective Date.
Section 7. Miscellaneous. Except as herein provided, the
Existing Credit Agreement shall remain unchanged and in full force and effect.
This Second 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 Second Amendment and
Restatement by signing any such counterpart. This Second Amendment and
Restatement shall be governed by, and construed in accordance with, the law of
the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
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. Xxxxxxx
----------------
Name: C.A. Xxxxxxx
Title: Treasurer
AGENT
CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: Vice President
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LENDERS
CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: Vice President
WACHOVIA BANK, N.A.
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President
BNP PARIBAS, as successor in interest to
Banque, Nationale de Paris
By /s/ Amaud Collin du Bocage
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Name: Amaud Collin du Bocage
Title: Managing Director
By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
BARCLAYS BANK PLC
By /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
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FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Director
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
MELLON BANK, N.A.
By /s/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
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DEUTSCHE BANK AG, New York and/or
Cayman Islands Branches
By /s/ Xxxxxxx Xxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxx Xxxxxx
Title: Vice President
By /s/ Xxxxx Xxxx
--------------
Name: Xxxxx Xxxx
Title: Director
NEW LENDERS
NONE
RETIRING LENDERS
ROYAL BANK OF CANADA
By /s/ Xxx X. Xxxxxx
-----------------
Name: Xxx X. Xxxxxx
Title: Senior Manager
SCHEDULE I
Lenders and Commitments
Lenders Commitment
CITIBANK, N.A. $34,000,000
FLEET NATIONAL BANK $27,000,000
MELLON BANK, N.A. $27,000,000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK $27,000,000
WACHOVIA BANK, N.A. $27,000,000
BNP PARIBAS $22,000,000
BARCLAYS BANK PLC $16,000,000
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
$10,000,000
THE NORTHERN TRUST COMPANY $10,000,000
Second Amended and Restated Credit Agreement
EXHIBIT A
[FORM OF OPINION OF GENERAL COUNSEL]
October 18, 2000
To each of the Lenders parties to the
Second 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 Second Amendment and Restatement dated as of October 18,
2000 (the "Second Amendment and Restatement") to the Credit Agreement dated as
of October 21, 1998 (as amended by the Amendment and Restatement dated as of
October 20, 1999 and the Second Amendment and Restatement, the "Second 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 Second Amendment and Restatement. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Second
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 Second Amendment
and Restatement;
(b) copies of the Certificate of Incorporation and Bylaws of the
Borrower;
(c) a certified copy of certain resolution 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 Second Amendment and Restatement and the Second
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 January 1, 2000 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 opinions herein state
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 Second Amended and Restated Credit Agreement insofar as this
provision purports to authorize a Person who has purchased a participation in
Advances under the Second 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 Bylaws. 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,
