EXECUTION COPY
EXHIBIT 10.20
THIRD AMENDMENT
TO
THE THREE-YEAR CREDIT AGREEMENT
THIRD AMENDMENT to the Three-Year Credit Agreement dated as of July 30,
2003 (this "Third Amendment") among ▇▇▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC. (the
"Borrower"), each lender to the Three-Year Credit Agreement (as defined below)
(the "Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent"), Swing Line Lender and Alternative Rate
Lender, BANK OF AMERICA, N.A., BANK ONE, NA AND LASALLE BANK NATIONAL
ASSOCIATION, as L/C Issuers, CITICORP USA, INC., as Syndication Agent, and BANK
ONE, NA, LASALLE BANK NATIONAL ASSOCIATION and UBS AG, STAMFORD BRANCH, as
Documentation Agents.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Administrative Agent, Citicorp
USA, Inc., as Syndication Agent, and Bank One, NA, LaSalle Bank National
Association and UBS AG, Stamford Branch, as Documentation Agents, entered into
that certain Three-Year Credit Agreement dated as of August 2, 2002 (as amended
by the First Amendment dated as of November 20, 2002, the Second Amendment dated
as of November 27, 2002 and this Third Amendment, as hereinafter amended,
modified, supplemented, extended or restated from time to time being called, the
"Amended Credit Agreement"). Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Amended Credit
Agreement.
(2) The Borrower has requested the Lenders to, among other things,
amend certain definitions, representations, covenants and other provisions in
the Amended Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
SECTION 1.01. Amendments to Article I. (a) Section 1.01 of the Amended
Credit Agreement is hereby amended by deleting the definitions of "Material
Decree" and "▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney" in its entirety.
(b) The definition of "Interest Period" in Section 1.01 of the
Amended Credit Agreement is hereby amended by deleting the word "and" at the end
of clause (ii), deleting the "." at the end of clause (iii), adding "; and" and
adding a new clause "(iv)" as follows:
"(iv) the one-month Eurodollar Rate, at the Borrower's
option, may have an Interest Period specified by the Borrower of
fourteen to twenty nine days or an Interest Period of one month."
(c) Section 1.01 of the Amended Credit Agreement is hereby amended
by adding the following definitions in the appropriate alphabetical order:
"Collateral Obligation" has the meaning specified in Section
7.11."
"Convertibles" has the meaning specified in Section 7.11"
SECTION 1.02. Amendments to Article II. Section 2.14(b) of the Amended
Credit Agreement is hereby amended by deleting the phrase "(in sufficient copies
for each Lender)" in the second sentence of Section 2.14(b) and inserting "(for
further distribution to each Lender)" in lieu thereof.
SECTION 1.03. Amendments to Article V. (a) Article V of the Amended
Credit Agreement is hereby amended by deleting the phrase "if determined
adversely," in Section 5.06.
(b) Article V of the Amended Credit Agreement is hereby further
amended by adding a new Section 5.17 to read as follows:
"Section 5.17 Tax Shelter Regulations. The Borrower does not
intend to treat the Loans and/or Letters of Credits and related
transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4). In the event the Borrower
determines to take any action inconsistent with such intention, it will
promptly notify the Administrative Agent thereof. If the Borrower so
notifies the Administrative Agent, the Borrower acknowledges that one
or more of the Lenders may treat its Committed Loans and/or its
interest in Swing Line Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1,
and such Lender or Lenders, as applicable, will maintain the lists and
other records required by such Treasury Regulation."
SECTION 1.04. Amendment to Article VI. (a) Sections 6.01 and 6.02 of
the Amended Credit Agreement are hereby amended by deleting the phrase "Deliver
to the Administrative Agent and each Lender:" at the beginning of Sections 6.01
and 6.02 and inserting "Deliver to the Administrative Agent (for further
distribution to each Lender):" in lieu thereof.
(b) Section 6.02 of the Amended Credit Agreement is hereby amended
by adding a new clause (c) as follows and changing the existing clause (c) to
clause (d):
"(c) promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to treat the
Loans and/or Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4) a duly completed copy of IRS Form 8886 or any
successor form; and"
SECTION 1.05. Amendment to Section 7.11. Section 7.11 is hereby deleted
in its entirety and the following is inserted in lieu thereof:
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"Section 7.11 Total Debt to Total Capitalization Ratio. Permit
the ratio of (i) Consolidated Total Debt to (ii) Consolidated Total
Capitalization to exceed at any prior month-end 0.55:1.
For purposes of calculations under this Section 7.11, (i) the
Indebtedness of any Person shall not include 75% of the principal
amount of any mandatorily convertible unsecured bonds, debentures,
preferred stock or similar instruments in a principal amount not to
exceed $500 million in the aggregate during the term of this Agreement
which are payable in no more than three years (whether by redemption,
call option or otherwise) solely in common stock or other common equity
interests of such Person (the "Convertibles"), and (ii) Shareholders'
Equity of any Person shall include 75% of the principal amount of any
Convertibles (whether or not such Convertibles would be considered
shareholders' equity under GAAP).
Further, for purposes of calculations under this Section 7.11,
Indebtedness shall include, without duplication, (i) the sum of (A) any
unpaid judgment, order, decree or jury verdict, including a reasonable
estimate of the costs, expenses, interest charges, and legal fees and
expenses related thereto, and (B) any bond, collateralization or
reimbursement obligation required in the form referred to in clause (b)
of the definition of Indebtedness relating to any such judgment, order,
decree or jury verdict (a "Collateral Obligation"), net of any cash
deposited, posted or otherwise paid in connection with a Collateral
Obligation, and net of any debt incurred to obtain a Collateral
Obligation, minus, (ii) cash, cash equivalents and short term
investments on the most balance sheet."
SECTION 1.06. Amendment to Article VIII. Section 8.01 of the Amended
Credit Agreement is hereby amended by deleting clause (b) thereof in its
entirety and inserting the following in lieu thereof:
"(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of (i) Section
6.01 or 6.02(b) and such failure continues for five (5) days, or (ii)
Section 6.03, 6.10 or 6.11 or Article VII; or"
SECTION 1.07. Amendment to Section 10.08. Section 10.08 is hereby
deleted in its entirety and the following is inserted in lieu thereof:
"Section 10.08 Confidentiality. Each of the Administrative
Agent, the Syndication Agent, the Documentation Agents and the Lenders
agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any
regulatory authority (including any self-regulatory authority, such as
the National Association of Insurance Commissioners); (c) to the extent
required by applicable laws or
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regulations or by any subpoena or similar legal process; (d) to any
other party to this Agreement; (e) in connection with the exercise of
any remedies hereunder or under any other Loan Document or any suit,
action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder; (f)
subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or credit derivative
transaction relating to the Borrower and its obligations; (g) with the
written consent of the Borrower; or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent, the
Syndication Agent, either Documentation Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. In
addition, the Administrative Agent, the Syndication Agent, each
Documentation Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and
service providers to the Administrative Agent, the Syndication Agent,
each Documentation Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan
Documents, the Commitments, and the Loans. For purposes of this
Section, "Information" means all information received from the Borrower
or its Subsidiaries relating to the Borrower or its business, other
than any such information that is available to the Administrative
Agent, the Syndication Agent, each Documentation Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; provided
that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified in writing at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality
of such Information as such Person would accord to its own confidential
information. Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Borrower, the Administrative
Agent and each Lender may disclose without limitation of any kind, any
information with respect to the "tax treatment" and "tax structure" (in
each case, within the meaning of Treasury Regulation 1.6011-4) of the
transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Borrower, the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document
or similar item that in either case contains information concerning the
tax treatment or tax structure of the transaction as well as other
information, this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or tax
structure of the Loans, the Letters of Credit and the transactions
contemplated hereby."
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SECTION 1.08. Amendment to Credit Agreement. For the purposes
of the Amended Credit Agreement, all references to "▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc." or "▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇" shall be replaced with the
following:
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc." (now known as Citicorp Global
Markets Inc.)
SECTION 1.9. Amendment to Schedule 10.02. Schedule 10.02 of the Amended
Credit Agreement is hereby amended by deleting the addresses under the headings
"Administrative Agent" and "Alternative Rate Lender" and inserting the following
in lieu thereof:
"ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Committed Loan Notices):
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Mail Code: NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Bank of America - Agency Services
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Bank of America
Charlotte, NC
ABA#: ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Account Name: Corp Credit Support
Ref: ▇▇▇▇▇▇▇▇▇▇▇
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: CA5-701-05-19
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ALTERNATIVE RATE LENDER:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Mail Code: NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Bank of America - Agency Services
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Bank of America
Charlotte, NC
ABA#: ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Account Name: Corp Credit Support
Ref: ▇▇▇▇▇▇▇▇▇▇▇
Other Notices to Alternative Rate Lender:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code: NC1-007-07-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
SECTION 1.10. Amendment to Schedule 2 to Exhibit D. Schedule 2 to
Exhibit D, the Compliance Certificate, is hereby deleted in its entirety and the
Schedule 2 attached hereto as Annex I is substituted in its place.
SECTION 1.11. Amendment to Exhibit E. Exhibit E of the Amended Credit
Agreement is hereby amended by deleting Section 2 of Annex 1 thereto and
inserting the following in lieu thereof:
"2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have
accrued from and after the Effective Date."
SECTION 1.12. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders, as follows:
(a) After giving effect to this Third Amendment, the
representations and warranties set forth in Article V of the Amended
Credit Agreement, and in each other Loan Document, are true and correct
in all material respects on and as of the date hereof and on and as of
the Third Amendment Effective Date (as defined below) with the same
effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate solely to an
earlier date, in which case they shall be true and correct in all
material respects as of such earlier date.
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(b) After giving effect to this Third Amendment, the
Borrower is in compliance with all the terms and conditions of the
Amended Credit Agreement and the other Loan Documents on its part to be
observed or performed and no Default or Event of Default has occurred
or is continuing under the Amended Credit Agreement.
(c) The execution, delivery and performance by the
Borrower of this Third Amendment have been duly authorized by the
Borrower.
(d) This Third Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
(e) The execution, delivery and performance by the
Borrower of this Third Amendment do not (i) contravene the terms of any
such Person's Organization Documents; (ii) conflict with or result in
any breach or contravention of, or the creation of any Lien under, (A)
any Contractual Obligation to which the Borrower is a party, except to
the extent that such breach, contravention or creation of any such Lien
could not reasonably be expected to have a Material Adverse Effect or
(B) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which the Borrower or its property is subject;
or (iii) violate any material Law.
(f) There are no actions, suits, proceedings, claims or
disputes, pending, or, to the knowledge of the Borrower after due and
diligent investigation threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority by or against the
Borrower or any of its Subsidiaries or against any of their properties
or revenues that (i) purport to affect or pertain to this Amended
Credit Agreement or any other Loan Document, or any of the transactions
contemplated hereby or (ii) either individually or in aggregate, could
reasonably be expected to have a Material Adverse Effect.
SECTION 1.13. Effectiveness. This Third Amendment shall become
effective only upon satisfaction of the following conditions precedent (the
first date upon which each such condition has been satisfied being herein called
the "Third Amendment Effective Date"):
(a) The Administrative Agent shall have received duly
executed counterparts of this Third Amendment which, when taken
together, bear the authorized signatures of the Borrower, the
Administrative Agent, the Required Lenders, the L/C Issuers and the
Swing Line Lender.
(b) The Borrower shall have paid all expenses referred to
in Section 1.15 of this Third Amendment.
SECTION 1.14. APPLICABLE LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED
THAT ALL PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
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SECTION 1.15. Expenses. The Borrower shall pay all reasonable costs and
expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, delivery and enforcement of this Third
Amendment, including all reasonable Attorney Costs. The agreement set forth in
this Section 1.15 shall survive the termination of this Third Amendment and the
Amended Credit Agreement.
SECTION 1.16. Counterparts. This Third Amendment may be executed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed counterpart of the signature page of this Third Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 1.17. Amended Credit Agreement. Except as expressly modified or
consented to herein, the Amended Credit Agreement shall continue in full force
and effect in accordance with the provisions thereof. This Third Amendment is a
Loan Document executed under the Amended Credit Agreement and shall be construed
in accordance with the Amended Credit Agreement.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed as of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: ______________________________________
Name: ___________________________________
Title: __________________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By: ______________________________________
Name: ___________________________________
Title: __________________________________
CITICORP USA, INC.,
as Syndication Agent
By: ______________________________________
Name: ___________________________________
Title: __________________________________
BANK ONE, NA, as Documentation Agent
By: ______________________________________
Name: ___________________________________
Title: __________________________________
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent
By: ______________________________________
Name: ___________________________________
Title: __________________________________
UBS AG, STAMFORD BRANCH, as
Documentation Agent
By: ______________________________________
Name: ___________________________________
Title: __________________________________
By: ______________________________________
Name: ___________________________________
Title: __________________________________
BANK OF AMERICA, N.A., as a Lender, Swing
Line Lender, Alternative Rate Lender and a
L/C Issuer
By: ______________________________________
Name: ___________________________________
Title: __________________________________
BANK ONE, NA, as a Lender and a L/C Issuer
By: ______________________________________
Name: ___________________________________
Title: __________________________________
BNP PARIBAS, as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
By: ______________________________________
Name: ___________________________________
Title: __________________________________
CITICORP USA, INC.,
as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
FIFTH THIRD BANK as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
LASALLE BANK NATIONAL ASSOCIATION, as a
Lender and a L/C Issuer
By: ______________________________________
Name: ___________________________________
Title: __________________________________
NATIONAL CITY BANK OF INDIANA, as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
THE NORTHERN TRUST COMPANY, as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
SUNTRUST BANK, as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
UBS AG, STAMFORD BRANCH, as a Lender
By: ______________________________________
Name: ___________________________________
Title: __________________________________
By: ______________________________________
Name: ___________________________________
Title: __________________________________