1
EXHIBIT 10.14.2
[CONFORMED COPY]
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 17, 1996 among
▇▇▇▇▇▇▇▇▇'▇, INC. (the "Borrower"), the BANKS listed on the signature pages
hereof (the "Banks"), NATIONSBANK OF TEXAS, N.A., as Co-Agent and ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, certain of the parties hereto have heretofore entered into a
Credit Agreement dated as of October 5, 1994 (as heretofore amended by Amendment
No. 1 dated as of October 25, 1995, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as set forth
herein and to restate the Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. (a) Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall from and after the date hereof refer
to the Agreement as amended and restated hereby. The term "Notes" defined in the
Agreement shall include from and after the date hereof the New Notes (as defined
below).
(b) Each of the following terms shall have the meaning given to such term
for purposes of this Amendment and Restatement:
"New Bank" means each Person listed on the signature pages hereof
which was not prior to the Restatement Effective Date a party to the
Agreement.
"New Note" means a Note issued hereunder to a New Bank.
"Restatement Effective Date" means the date this Amendment and
Restatement becomes effective in accordance with Section 9 hereof.
SECTION 2. Amendments to Definitions: Section 1.01 of the Agreement is
amended as follows:
1
2
(a) The definition of "Borrower's 1994 Form 10-K" is replaced with the
following definition of "Borrower's 1995 Form 10-K":
"Borrower's 1995 Form 10-K" means the Borrower's Annual Report on
Form 10-K for 1995, as filed with the Securities and Exchange Commission
pursuant to the Securities and Exchange Act of 1934.
(b) The definition of "Termination Date" is amended by replacing the date
"October 25, 2000" with the date "December 17, 2001".
SECTION 3. New Pricing Schedule. The Pricing Schedule to the Agreement is
deleted and replaced by the Pricing Schedule attached hereto.
SECTION 4. Regulation D Compensation. (a) The following new Section 2.15
is added to Article II of the Agreement:
SECTION 2.15. Regulation D Compensation. Each Bank may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of
such Bank at a rate per annum determined by such Bank up to but not
exceeding the excess of (i) (A) the applicable London Interbank Offered
Rate divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii)
the applicable London Interbank Offered Rate. Any Bank wishing to require
payment of such additional interest (x) shall so notify the Borrower and
the Agent, in which case such additional interest on the Euro-Dollar Loans
of such Bank shall be payable to such Bank at the place indicated in such
notice with respect to each Interest Period commencing at least three
Euro-Dollar Business Days after such Bank gives such notice and (y) shall
notify the Borrower at least five Euro-Dollar Business Days before each
date on which interest is payable on the Euro-Dollar Loans of the amount
then due it under this Section.
(b) The definitions of "Adjusted London Interbank Offered Rate" in
Sections 1.01 and 2.07(c) of the Agreement are deleted, and each other reference
in the Agreement to "Adjusted London Interbank Offered Rate" is changed to
"London Interbank Offered Rate".
(c) The last sentence of the definition of Euro-Dollar Reserve Percentage
in Section 2.07(c) of the Agreement is deleted.
(d) Clause (a)(ii)(B) of Section 8.03 of the Agreement is amended to read
as follows:
(B) With respect to any Euro-Dollar Loan any such requirement with respect
to which such Bank is entitled to compensation during the relevant
Interest Period under Section 2.15.
SECTION 5. Changes in Commitments. With effect from and including the
Restatement Effective Date, (i) each New Bank shall become a Bank party to the
Agreement and (ii) the
2
3
Commitment of each Bank shall be the amount set forth opposite the name of such
Bank on the signature pages hereof. Any Bank whose Commitment is changed to zero
shall upon such effectiveness cease to be a Bank party to the Agreement, and all
accrued fees and other amounts payable under the Agreement for the account of
such Bank shall be due and payable on such date; provided that the provisions of
Sections 8.03, 8.04 and 9.03 of the Agreement shall continue to inure to the
benefit of each such Bank.
SECTION 6. Updated Representations. (a) Each reference to "February 2,
1995" in Section 4.04 of the Agreement is changed to "February 1, 1996".
(b) Each reference to "August 3, 1995" in Section 4.04 of the Agreement is
changed to "October 31, 1996".
(c) Each reference "twenty-six" in Section 4.04 is changed to
"thirty-nine."
(d) Each reference to "Borrower's 1993 Form 10-K" or "Borrower's 1994 Form 10-K"
in Sections 4.04(a) and 4.05 of the Agreement is changed to "Borrower's 1995
Form 10-K".
SECTION 7. Representations and Warranties. The Borrower hereby represents
and warrants that as of the Restatement Effective Date and after giving effect
thereto:
(a) no Default has occurred and is continuing; and
(b) each representation and warranty of the Borrower set forth in the
Agreement after giving effect to this Amendment and Restatement is true and
correct as though made on and as of such date.
SECTION 8. Governing Law. This Amendment and Restatement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 9. Counterparts; Effectiveness. This Amendment and Restatement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment and Restatement shall become effective on the date
that each of the following conditions shall have been satisfied:
(i) receipt by the Agent of duly executed counterparts hereof signed
by each of the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, the Agent shall have
received telegraphic, telex or other written confirmation from such party
of execution of a counterpart hereof by such party);
(ii) receipt by the Agent of a duly executed New Note for each of
the New Banks, dated on or before the date of effectiveness hereof and
otherwise in compliance with Section 2.05 of the Agreement;
3
4
(iii) receipt by the Agent of an opinion of the General Counsel or
the Assistant General Counsel of the Borrower (or such other counsel for
the Borrower as may be acceptable to the Agent), substantially to the
effect of Exhibit E to the Agreement with reference to the New Notes, this
Amendment and Restatement and the Agreement as amended and restated
hereby; and
(iv) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Borrower, the corporate authority for and
the validity of the Agreement as amended and restated hereby, the New
Notes and any other matters relevant hereto, all in form and substance
satisfactory to the Agent;
provided that this Amendment and Restatement shall not become effective or
binding on any party hereto unless all of the foregoing conditions are satisfied
not later than December 31, 1996. The Agent shall promptly notify the Borrower
and the Banks of the Restatement Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
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.
▇▇▇▇▇▇▇▇▇'▇, INC.
By /s/ A. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Senior Vice President, Finance &
Chief Financial Officer
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Finance Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
4
5
Commitments
-----------
$90,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK
By/s/ ▇▇▇▇ ▇. Silver
--------------------------------------
Title: Associate
$75,000,000 NATIONSBANK OF TEXAS, N.A.
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President
$75,000,000 WACHOVIA BANK OF GEORGIA, NATIONAL
ASSOCIATION
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
$45,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Managing Director
$45,000,000 FIRST SECURITY BANK, N.A.
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
$45,000,000 SUN BANK, NATIONAL ASSOCIATION
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
$45,000,000 ▇▇▇▇▇ FARGO BANK, N.A.
By/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Title: Vice President
5
6
$35,000,000 U.S. BANK OF IDAHO
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
$35,000,000 UNION BANK OF SWITZERLAND
By/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Managing Director
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Assistant Vice President
$30,000,000 ABN AMRO NORTH AMERICA
as Agent for ABN AMRO BANK N.V.
By/s/ ▇▇▇-▇▇▇ Miao
--------------------------------------
Title: Vice President & Director
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: Vice President & Director
$30,000,000 CIBC INC.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., AS AGENT
$25,000,000 THE DAI-ICHI KANGYO BANK, LIMITED SAN
FRANCISCO AGENCY
By/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Joint General Manager
6
7
$25,000,000 THE BANK OF NOVA SCOTIA
By/s/ Maarten Van Otterloo
--------------------------------------
Title: Senior Relationship Manager
-0- CREDIT SUISSE
By/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Member of Senior Management
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Associate
Total Commitments
$600,000,000
============
7
8
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Agent
By/s/ ▇▇▇▇ ▇. Silver
--------------------------------------
Title: Associate
NATIONSBANK OF TEXAS, N.A.,
as Co-Agent
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President
8
9
PRICING SCHEDULE
The "Facility Fee Rate", "Euro-Dollar Margin" and "CD Margin" for
any day are the respective percentages set forth below in the applicable row
under the column corresponding to the Status that exists on such day:
=======================================================================================
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ I II III IV V VI
=======================================================================================
Facility Fee Rate 0.050% 0.060% 0.070% 0.080% 0.1250% 0.250%
---------------------------------------------------------------------------------------
Euro-Dollar Margin 0.100% 0.1150% 0.1550% 0.1950% 0.250% 0.500%
---------------------------------------------------------------------------------------
CD Margin 0.2250% 0.240% 0.280% 0.3200% 0.3750% 0.6250%
=======================================================================================
For purposes of this Schedule, the following terms have the
following meanings, subject to the concluding paragraphs of this Schedule:
"Level I Status" exists at any date if, at such date, the Borrower's
long-term debt is rated at least AA by S&P or Aa2 by ▇▇▇▇▇'▇.
"Level II Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least AA- by S&P or Aa3 by ▇▇▇▇▇'▇ and
(ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least A by S&P or A2 by ▇▇▇▇▇'▇ and (ii)
neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least A- by S&P and A3 by ▇▇▇▇▇'▇ and (ii)
none of Level I Status, Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least BBB by S&P and Baa2 by ▇▇▇▇▇'▇ and
(ii) none of Level I Status, Level II Status, Level III Status or Level IV
Status exists.
"Level VI Status" exists at any date if, at such date, no other
Status exists.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status or Level VI
Status exists 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.
9
10
The following provisions are applicable so long as the Borrower's long-term debt
is rated at least A- by S&P and at least A3 by ▇▇▇▇▇'▇: If the Borrower is
split-rated and the ratings differential is one level, the higher of the two
ratings will apply (e.g., A/A3 results in Level III Status). If the Borrower is
split-rated and the ratings differential is more than one level, the average of
the two ratings (or the higher of two intermediate ratings) shall be used (e.g.,
AA/Al results in Level II Status, while AA/A3 results in Level III Status).
If the Borrower's long-term debt is not rated at least A- by S&P and
at least A3 by ▇▇▇▇▇'▇, then either Level V Status or Level VI Status exists, as
determined in accordance with the respective definitions of such terms above.
10