Exhibit 10.2
AMENDMENT NO. 4
to
364-DAY REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO THE 364-DAY REVOLVING CREDIT AGREEMENT (the
"Amendment") is made as of March 17, 2004 by and among THE TJX COMPANIES, INC.
(the "Borrower"), the financial institutions listed on the signature pages
hereof (the "Lenders"), THE BANK OF NEW YORK, as successor administrative agent
for the Lenders (the "Administrative Agent") and as a resigning syndication
agent, BANK ONE, NA, as resigning administrative agent, FLEET NATIONAL BANK, as
a resigning syndication agent, JPMORGAN CHASE BANK and BANK OF AMERICA, N.A., as
successor syndication agents (collectively, the "Syndication Agents") and as
resigning documentation agents and KEY BANK and UNION BANK OF CALIFORNIA, as
successor documentation agents (collectively, the "Documentation Agents").
WITNESSETH
WHEREAS, the Borrower, the Lenders, Bank One, NA, as Administrative
Agent, Fleet National Bank and The Bank of New York, as Syndication Agents and
Bank of America, N.A. and JPMorgan Chase Bank, as Documentation Agents entered
into that certain 364-Day Revolving Credit Agreement, dated as of March 26, 2002
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"; capitalized terms used herein, but not defined herein, shall
have the meanings ascribed to such terms in the Credit Agreement);
WHEREAS, the Borrower has requested that the Lenders agree to renew the
Commitments and the Credit Agreement for an additional 364 days from the
Effective Date (as hereinafter defined) of this Amendment;
WHEREAS, the Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement, and the Lenders are willing to agree
to such amendments upon the terms and conditions contained in this Amendment;
WHEREAS, Bank One, NA is resigning as Administrative Agent and the
Borrower has requested that The Bank of New York be appointed as successor
Administrative Agent and that the Required Lenders consent to the appointment of
The Bank of New York as successor Administrative Agent;
WHEREAS, Fleet National Bank and The Bank of New York are resigning as
Syndication Agents and the Borrower is designating JPMorgan Chase Bank and Bank
of America, N.A. as successor Syndication Agents;
WHEREAS, Bank of America, N.A. and JPMorgan Chase Bank are resigning as
Documentation Agents and the Borrower is designating Key Bank and Union Bank of
California as successor Documentation Agents;
WHEREAS, the Borrower is also designating JPMorgan Securities, Inc. and
Banc of America Securities, LLC (together with the current Co-Lead Arranger, BNY
Capital Markets, Inc.) as Co-Arrangers and BNY Capital Markets, Inc. as Sole
Book Runner; and
WHEREAS, the parties have agreed to renew and amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree to the following amendments to the Credit Agreement:
1. Amendments to the Credit Agreement. Effective as of March
19, 2004 (the "Effective Date") and subject to the satisfaction of the
conditions precedent set forth in Section 4 below on or before March 17, 2004,
the Credit Agreement is hereby amended as follows:
1.1 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Administrative Agent" in its entirety and replacing
it with the following:
"Administrative Agent" means BNY in its capacity as
contractual representative for the Lenders pursuant to Article
X, and not in its capacity as a Lender, and any successor
Administrative Agent appointed pursuant to Article X.
1.2 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Arrangers" in its entirety and replacing it with the
following:
"Arrangers" means JPMorgan Securities, Inc. and Banc
of America Securities, LLC, in their capacities as co-lead
arrangers and BNY Capital Markets, Inc. in its capacity as a
co-lead arranger and sole book runner.
1.3 Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition in the appropriate alphabetical order:
"B of A" means Bank of America, N.A.
1.4 Section 1.1 is hereby amended by adding the following
definition of "Documentation Agents" in the appropriate alphabetical order:
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"Documentation Agents" means, collectively, Key Bank
and UBOC and their respective successors and assigns.
1.5 Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition in appropriate alphabetical order:
"Key Bank" means Key Bank, National Association.
1.6 Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition in the appropriate alphabetical order:
"JPMorgan" means JPMorgan Chase Bank.
1.7 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Payment Office" in its entirety and replacing it
with the following:
"Payment Office" means the principal office of the
Administrative Agent in New York, New York, located on the
date hereof at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or
such other office of the Administrative Agent as the
Administrative Agent may from time to time designate by
written notice to the Borrower and the Lenders.
1.8 Section 1.1 of the Credit Agreement is hereby amended by
deleting the date "March 19, 2004" now appearing in the definition of "Revolving
Loan Termination Date" and replacing it with the date "March 17, 2005. "
1.9 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Specified Remittance Time" in its entirety and
replacing it with the following:
"Specified Remittance Time" means (a) if the relevant
Payment Office is located in New York, New York, 2:00 p.m.
(New York time) and (b) if the relevant Payment Office is
located elsewhere, such time as the Administrative Agent shall
specify after consultation with the Lenders and the consent of
the Borrower, which consent shall not be reasonably withheld.
1.10 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Syndication Agents" in its entirety and replacing it
with the following:
"Syndication Agents" means, collectively, JPMorgan
and B of A and their respective successors and assigns.
1.11 Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition in appropriate alphabetical order:
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"UBOC" means Union Bank of California.
1.12 Section 2.10(b)(ii) of the Credit Agreement is hereby
amended by deleting "9:45 a.m. (Chicago time)" where it appears and replacing it
with "10:45 a.m. (New York time)."
1.13 Sections 5.4 and 5.5 of the Credit Agreement are hereby
amended by deleting the date "January 26, 2002" and replacing it with the date
"January 25, 2003."
1.14 The Credit Agreement is hereby amended by deleting "Bank
One" in each place where it appears as a reference to the Administrative Agent
and replacing it with "BNY."
1.15 The Credit Agreement is hereby amended by deleting "11:00
a.m. (Chicago time)" in each place in which it appears and replacing it with
"12:00 p.m. (New York time)," by deleting "10:00 a.m. (Chicago time)" in each
place in which it appears and replacing it with "11:00 a.m. (New York time)" and
by deleting "1:00 p.m. (Chicago time)" in each place in which it appears and
replacing it with "2:00 p.m. (New York time)."
1.16 The Credit Agreement is hereby amended by deleting
Schedule 1 in its entirety and replacing it with the attached Schedule 1.
2. Resignation and Appointment of Administrative Agent.
2.1 Resignation of Bank One, NA. Pursuant to Section 10.11 of
the Credit Agreement, Bank One, NA hereby resigns as Administrative Agent
effective as of the Effective Date.
2.2 Appointment of Successor Administrative Agent. The
Borrower and the Lenders (a) hereby waive compliance with the procedures set
forth in Section 10.11 of the Credit Agreement relating to the resignation of
Bank One, NA, as Administrative Agent and the appointment and approval of BNY,
as successor Administrative Agent, (b) accept the resignation of Bank One, NA,
as Administrative Agent and hereby appoint and approve The Bank of New York as
successor Administrative Agent, effective as of the Effective Date and (c) agree
that from and after the Effective Date, all references in the Credit Agreement
or any other Loan Document to the Administrative Agent shall be deemed to refer
to The Bank of New York as Administrative Agent.
2.3 Acceptance of Appointment. The Bank of New York hereby
accepts its appointment as Administrative Agent.
3. Resignation and Designation of Syndication Agents,
Documentation Agents, and Co-Arrangers and Sole Book Runner.
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3.1 Syndication Agents. Fleet and BNY hereby resign as
Syndication Agents and JPMorgan and B of A are hereby designated as Syndication
Agents.
3.2 Documentation Agents. B of A and JPMorgan hereby resign as
Documentation Agents and Key Bank and UBOC are hereby designated as
Documentation Agents.
3.3 Co-Arrangers and Book Runners. JPMorgan Securities, Inc.,
Bank of America Securities, LLC and BNY Capital Markets, Inc. are hereby
designated as Co-Arrangers in the place of Fleet Securities, Inc. and BNY
Capital Markets, Inc. In addition, BNY Capital Markets, Inc. is hereby
designated as Sole Book Runner in place of Fleet Securities, Inc. and BNY
Capital Markets, Inc., as Joint Book Runners.
4. Conditions of Effectiveness. The effectiveness of this
Amendment is subject to the conditions precedent that the Administrative Agent
shall have received the following on or before March 17, 2004:
(a) duly executed copies of this Amendment from each of the
Borrower, the successor and resigning Administrative Agent, the successor and
resigning Syndication Agents, the successor and resigning Documentation Agents
and the Lenders;
(b) duly executed copies of a Reaffirmation in the form of
Attachment A attached hereto from each of the Subsidiaries identified thereon
(the "Reaffirmation");
(c) the Upfront Fee (as defined below);
(d) any other fee payable to the Agents in connection with
this Amendment, which fees may be paid directly to the Agents;
(e) a Certificate of the Secretary of the Borrower and each
party executing the Reaffirmation (collectively, the "Credit Parties") (i)
certifying that there have been no changes in its respective certificate of
incorporation and by-laws (or equivalent governing documents) since ▇▇▇▇▇ ▇▇,
▇▇▇▇, (▇▇) certifying as to the resolutions of the board of directors (or
similar governing body) of each such Credit Party approving and authorizing the
execution, delivery and performance of the Credit Agreement, as amended hereby,
and the other Loan Documents to which it is a party, and (iii) certifying as to
the incumbency and the signatures of the officers, identified by name and title,
of each such Credit Party authorized to execute this Amendment and the other
Loan Documents; and
(f) a copy of the certificate of good standing, existence or
its equivalent certified as of a recent date by the appropriate government
authority of the state of incorporation of the Borrower.
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5. Upfront Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender an upfront fee (the "Upfront Fee") in an
amount equal to 0.03% (3 basis points) multiplied by such Lender's Commitment
(after giving effect to this Amendment).
6. Representations and Warranties of the Borrower.
6.1 The Borrower hereby represents and warrants that this
Amendment, the Reaffirmation and the Credit Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Borrower and the Subsidiaries parties thereto and are enforceable against the
Borrower and the Subsidiaries parties thereto in accordance with their terms
(except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally).
6.2 Upon the effectiveness of this Amendment and after giving
effect hereto, the Borrower hereby (i) reaffirms all representations and
warranties contained in Article V of the Credit Agreement, as amended hereby,
and agrees that all such representations and warranties are true and correct in
all material respects, as though made on and as of the Effective Date, except to
the extent any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall be true and
correct on and as of such earlier date and (ii) certifies to the Agents and the
Lenders that no Default or Unmatured Default has occurred and is continuing.
7. Reference to the Effect on the Credit Agreement.
7.1 Upon the effectiveness of Section 1, hereof, on and after
the date hereof, each reference in the Credit Agreement or in any other Loan
Document (including any reference therein to "this Credit Agreement,"
"hereunder," "hereof," "herein" or words of like import referring thereto) or in
any other Loan Document shall mean and be a reference to the Credit Agreement as
amended hereby.
7.2 Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
7.3 The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or the Lenders, nor constitute a waiver of any provision of
the Credit Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL
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LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
10. Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
THE TJX COMPANIES, INC., as the
Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President -
Finance, Treasurer
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THE BANK OF NEW YORK, as
successor Administrative
Agent, as a resigning
Syndication Agent and as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
BANK ONE, NA (Main Office Chicago),
as resigning Administrative Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Associate
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
FLEET NATIONAL BANK, as a
resigning Syndication Agent and
as a Lender
By: /s/ ▇▇▇▇▇ Alto
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Name: ▇▇▇▇▇ Alto
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Title: Director
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a
successor Syndication Agent, as a
resigning Documentation Agent and
as a Lender
By: /s/ ▇▇▇ Honey
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Name: ▇▇▇ Honey
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
JPMORGAN CHASE BANK, as a
successor Syndication Agent,
as a resigning Documentation
Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
FIFTH THIRD BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Relationship Manager
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.,
as a successor Documentation
Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
KEY BANK NATIONAL ASSOCIATION, as
a successor Documentation Agent
and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing Director
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
MELLON BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Title: Assistant Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Corporate Director
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA, as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
SUNTRUST BANK, N.A., as a Lender
By: /s/ ▇▇▇▇ Schects
-------------------------------
Name: ▇▇▇▇ Schects
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Title: Assistant Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
SOVEREIGN BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
ATTACHMENT A
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 4 to the 364-Day Revolving Credit Agreement dated
as of March 26, 2002 by and among The TJX Companies, Inc. (the "Borrower"), the
financial institutions from time to time party thereto (the "Lenders"), THE BANK
OF NEW YORK ("BNY"), in its individual capacity and as successor administration
agent ("Administrative Agent"), BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK,
as successor syndication agents (the "Syndication Agents") and KEY BANK and
UNION BANK OF CALIFORNIA, as successor documentation agents (the "Documentation
Agents") (as amended by an Amendment No. 1 dated as of May 3, 2002, an Amendment
No. 2 dated as of July 19, 2002 and an Amendment No. 3 dated as of March 24,
2003, and as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), which Amendment No. 4 is
dated as of March 17, 2004 (the "Amendment"). Capitalized terms used in this
Reaffirmation and not defined herein shall have the meanings given to them in
the Credit Agreement. Without in any way establishing a course of dealing by the
Administrative Agent, the Syndication Agents, the Documentation Agents or any
Lender, each of the undersigned reaffirms the terms and conditions of the
Facility Guaranty and any other Loan Document executed by it and acknowledges
and agrees that such agreement and each and every such Loan Document executed by
the undersigned in connection with the Credit Agreement remains in full force
and effect and is hereby reaffirmed, ratified and confirmed. All references to
the Credit Agreement contained in the above-referenced documents shall be a
reference to the Credit Agreement as so modified by the Amendment and as the
same may from time to time hereafter be amended, modified or restated.
Dated: March 17, ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇ ▇▇, LLC
T.J. MAXX OF IL, LLC
MARMAXX OPERATING CORP.
MARSHALLS OF MA, INC.
NBC OPERATING, LLC
MARSHALLS OF RICHFIELD, MN, INC.
▇▇▇▇▇▇ BUYING COMPANY OF CA, INC.
HOMEGOODS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President - Finance, Treasurer
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT
MARSHALLS OF CA, LLC
MARSHALLS OF IL, LLC
NBC TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Treasurer
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NBC, FOURTH REALTY CORP.
MARSHALL'S OF NEVADA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President - Treasurer
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CONCORD BUYING GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President - Treasurer
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SIGNATURE PAGE TO AMENDMENT NO. 4 TO 364-DAY REVOLVING CREDIT AGREEMENT