AMENDMENT AND RESTATEMENT AGREEMENT dated as of November 5, 2002 among AMERICAN STANDARD COMPANIES INC. AMERICAN STANDARD INC. AMERICAN STANDARD INTERNATIONAL INC. The Borrowing Subsidiaries Party Hereto The Lenders Party Hereto JPMORGAN CHASE BANK as...
Exhibit 10(ii)
AMENDMENT AND RESTATEMENT AGREEMENT
dated as of
November 5, 2002
among
AMERICAN STANDARD COMPANIES INC.
AMERICAN STANDARD INC.
AMERICAN STANDARD INTERNATIONAL INC.
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
JPMORGAN CHASE BANK
as Administrative
Agent and Swingline Lender
BANK OF AMERICA, N.A.,
CITIBANK, N.A.,
LLOYDS TSB
BANK PLC,
as Syndication Agents
and
ABN AMRO BANK N.V.,
BARCLAYS BANK PLC,
SOCIETE GENERALE
as Co-Syndication Agents
CONFORMED COPY
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Lead Arranger and Sole Bookrunner
AMENDMENT AND
RESTATEMENT AGREEMENT dated as of November 5, 2002 (this “Amendment and Restatement”), in
respect of the 364-DAY CREDIT AGREEMENT dated as of November 6, 2001 (the “Existing Credit
Agreement”), among AMERICAN STANDARD COMPANIES INC., a Delaware corporation
(“Holdings”); AMERICAN STANDARD INC., a Delaware corporation
(the “Company”); AMERICAN STANDARD INTERNATIONAL INC., a Delaware
corporation (“ASII”); the BORROWING SUBSIDIARIES from time to time
party hereto (the “Borrowing Subsidiaries”, and, together with the Company and ASII,
the “Borrowers”); the LENDERS from time to time party hereto
(the “Lenders”); JPMORGAN CHASE BANK, as Administrative Agent (in such
capacity, the “Administrative Agent”) and as Swingline Lender; BANK OF
AMERICA, N.A., CITIBANK, N.A., and LLOYDS TSB BANK PLC, as Syndication Agents and
ABN AMRO BANK N.V., BARCLAYS BANK PLC, and SOCIETE GENERALE, as Co-Syndication Agents.
The Company
has requested that the Existing Credit Agreement be amended and restated as set
forth in Section 1 below and the other parties hereto are willing so to amend and
restate the Existing Credit Agreement. Each capitalized term used but not defined
herein has the meaning assigned thereto in the Existing Credit Agreement as amended
and restated hereby.
In consideration
of the premises and the agreements herein contained, the parties hereto hereby agree,
on the terms and subject to the conditions set forth herein, as follows:
SECTION 1.
Amendment and Restatement. Upon the effectiveness of this Amendment and Restatement
as provided in Section 3 below, the Existing Credit Agreement shall be amended and
restated in the form in which it exists on the date hereof but with the following
revisions (the Existing Credit Agreement, as so amended and restated, being called
the “Restated Credit Agreement”):
(a) The first
sentence of the preamble is hereby deleted and replaced with the following sentence:
“The
Borrowers have requested the Lenders to amend and restate the Existing Credit
Agreement (such term and each other capitalized term used and not otherwise defined
herein having the meaning assigned to it in Article I) to extend credit in
the form of (a) Commitments under
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which the Borrowers
may obtain Loans in US Dollars in an aggregate principal amount at any time outstanding
not in excess of US$150,000,000 and (b) Swingline Loans in US Dollars in an aggregate
principal amount at any time outstanding not in excess of US$25,000,000.”
(b) Section 1.01 is
hereby amended as follows:
(i) Chase.
The definition of the term “Chase” is hereby amended to read as follows:
““JPMCB
” means JPMorgan Chase Bank and its successors.”
and as so
amended is moved to its proper alphabetical position. Each reference in the Existing
Credit Agreement to the defined term “Chase” is amended to refer to “JPMCB”.
(ii) Commitment.
The definition of the term “Commitment” is hereby amended by deleting the amount
“US$300,000,000” from the last sentence thereof and substituting
therefor “US$150,000,000”.
(iii) Commitment
Termination Date. The definition of the term “Commitment Termination Date” is hereby
amended by deleting the date “November 5, 2002” and substituting therefor “November
4, 2003”.
(iv) Existing
Credit Agreement. The definition of the term “Existing Credit Agreement” is hereby
amended to read as follows:
““Existing
Credit Agreement” means the 364-Day Credit Agreement dated as of November 6,
2001, among Holdings, the Company, ASII, the borrowing subsidiaries party thereto,
the lenders party thereto and the agents party thereto.”
(v) Five-Year
Credit Agreement. The definition of the term “Five Year Credit Agreement” is hereby
amended by deleting the phrase “the date hereof” and substituting therefor “November
6, 2001, as amended”.
(c) Section
2.05(a) is hereby amended by deleting the amount “US$50,000,000” and substituting
therefor “US$25,000,000”.
(d) A new
paragraph (d) is hereby added to Section 2.11 as follows:
“(d) For each
day after the Commitment Termination Date on which there is any Revolving Credit
Exposure, the Company and ASII agree, jointly and severally, to pay to the Administrative
Agent, in US Dollars, for the account of each Lender, a term-out fee, which shall
accrue at a rate equal to 0.50% per annum on the amount of the Revolving Credit
Exposure of such Lender on such day. Accrued term-out fees shall be payable in
arrears on the last day of March, June, September and December of each year, on
any date prior to the Maturity Date on which all the Commitments shall have terminated
and on the Maturity Date, commencing on the first such date to occur after the Commitment
Termination Date; provided that any term-out fees accruing after the Maturity
Date shall be payable on demand. All term-out fees
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shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).”
(e) Paragraph
(a) of Section 3.04 is hereby amended by deleting the date “December 31, 2000” and
substituting therefor “December 31, 2001” and by deleting the date “June 30, 2001”
and substituting therefor “June 30, 2002”.
(f) Section
3.05 is hereby amended by deleting the date “December 31, 2000” and substituting
therefor “December 31, 2001”.
(g) Section
3.06 is hereby amended by deleting the date “September 30, 2001” and substituting
therefor “September 30, 2002”.
(h) Section
3.07 is hereby amended by deleting the date “December 31, 2000” and substituting
therefor “December 31, 2001”.
(i) Section
3.14 is hereby amended by adding the phrase “, the Confidential Information Memorandum
dated October 2002 relating to Holdings, the Company, ASII and the Transactions,
“ after the phrase “Information Memorandum” therein.
(j) Conditions.
Section 4.01 is hereby deleted and replaced with:
“SECTION 4.01. Intentionally Omitted.”
(k) Article
VI is hereby amended by deleting each occurrence of the phrase “the date hereof”
and substituting therefor “November 6, 2001”.
(l) Section
6.01 is hereby amended by deleting the parenthetical therein.
(m) Schedule
2.01. Schedule 2.01 is hereby deleted and replaced with Schedule 2.01 to this Amendment
and Restatement.
(n) Effective
Date. From and after the Effective Date (as defined below), all references in the
Restated Credit Agreement to “the date hereof”, “the date of this Agreement” or
other words or phrases of similar import shall be deemed references to the date
of this Amendment and Restatement.
SECTION 2.
Representations and Warranties. Holdings represents and warrants to the Lenders as to itself and
each Subsidiary, and the Company, ASII and each other Borrowing Subsidiary represents
and warrants to the Lenders as to itself and its subsidiaries, as of the date hereof
and as of the Effective Date, that:
(a) Before
and after giving effect to this Amendment and Restatement, the representations and
warranties set forth in the Existing Credit Agreement and the Restated Credit Agreement,
as applicable, are true and correct in all material respects with the same effect
as if made on the Effective Date, except to the extent such representations and
warranties expressly relate to an earlier date.
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(b) At the
time of and after giving effect to this Amendment and Restatement, no Default has
occurred and is continuing.
SECTION 3.
Conditions to Effectiveness. This Amendment and Restatement and the obligations of the Lenders
to make Loans under the Restated Credit Agreement shall become effective on the
date (the “Effective Date”) on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02 of the Existing Credit Agreement):
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto or to any other
Credit Document either (i) a counterpart of this Amendment and Restatement signed
on behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of this
Amendment and Restatement) that such party has signed a counterpart of this Amendment
and Restatement.
(b) The Guarantee
Requirement shall be satisfied.
(c) The
Administrative Agent (or its counsel) shall have received favorable written opinions (addressed
to the Administrative Agent, the Swingline Lender and the Lenders and dated the
Effective Date) of (i) ▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the Company, substantially
in the form of Exhibit D-1 and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Borrowers, substantially in the form of Exhibit D-2. Each Credit Party hereby requests
such counsel to deliver such opinions.
(d) The
Administrative Agent (or its counsel) shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of each Credit Party that is a US Subsidiary, the authorization
of the Transactions and any other legal matters relating to the Credit Parties,
this Amendment and Restatement, the Restated Credit Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The
Administrative Agent (or its counsel) shall have received for each Non-US Subsidiary which is a
Borrowing Subsidiary under the Existing Credit Agreement either (i) such documents
and certificates, including such opinions of counsel, as the Administrative Agent
(or its counsel) may reasonably request relating to the organization, existence
and good standing (to the extent such concept is relevant to such Borrowing Subsidiary
in its jurisdiction of organization) of such Borrowing Subsidiary, the authorization
of the Transactions insofar as they relate to such Borrowing Subsidiary and any
other legal matters reasonably relating to such Borrowing Subsidiary or such Transactions,
all in form and substance reasonably satisfactory to the Administrative Agent and
its counsel or (ii) a Borrowing Subsidiary Termination, dated the Effective Date,
substantially in the form of Exhibit B-2.
(f) The
Administrative Agent (or its counsel) shall have received a certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of Holdings,
the Company and ASII, confirming compliance with the conditions
5
set
forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement and
paragraphs (b), (i) and (j) of this Section 3.
(g) Any loans
outstanding under the Existing Credit Agreement shall have been repaid, together
with all interest, fees, including breakage fees, and other amounts accrued thereunder.
(h) The
Administrative Agent shall have received all fees, including participation fees, and other amounts
due and payable on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses (including fees, charges
and disbursements of counsel) required to be reimbursed or paid by Holdings or any
Borrower or Subsidiary in connection with this Amendment and Restatement or any
Loan Document.
(i) The Index
Ratings shall be BBB- or higher (in the case of the rating by S&P) and Ba1
or higher (in the case of the rating by ▇▇▇▇▇’▇), in each case with no negative
outlook.
(j) The
Administrative Agent and each Lender shall have received each financial statement or report referred
to in Section 3.04 of the Restated Credit Agreement.
The Administrative Agent shall notify the Credit Parties and the Lenders in writing of the Effective Date, and such notice shall be conclusive and binding.
SECTION 4.
Agreement. Except as specifically stated herein, the provisions of the Existing Credit
Agreement are and shall remain in full force and effect. As used therein, the terms “Credit
Agreement”, “herein”, “hereunder”, “hereinafter”,
“hereto”, “hereof” and words of similar import shall, unless the
context otherwise requires, refer to the Restated Credit Agreement.
SECTION 5.
Expenses. The Company agrees to reimburse the Administrative Agent for its out-of-pocket
expenses incurred by it in connection with this Amendment and Restatement, including the
reasonable fees, charges and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel
for the Administrative Agent.
SECTION 6.
Counterparts. This Amendment and Restatement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all of which when taken together shall
constitute a single instrument. Delivery of an executed counterpart of a signature page
of this Amendment and Restatement by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
SECTION
7. Applicable Law. THIS AMENDMENT AND RESTATEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
8. Headings. The headings of this Amendment and Restatement are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
6
IN WITNESS
WHEREOF, the parties hereto have caused this Amendment and Restatement to be duly
executed by their respective authorized officers as of the day and year first above
written.
| AMERICAN STANDARD COMPANIES INC. | ||
| by | ||
| /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President & Treasurer | ||
| AMERICAN STANDARD INC. | ||
| by | ||
| /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President & Treasurer | ||
| AMERICAN STANDARD INTERNATIONAL INC. | ||
| by | ||
| /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President & Treasurer | ||
| JPMORGAN CHASE BANK, | ||
| individually and as Administrative Agent and Swingline Lender | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Title: Vice President | ||
| BANK OF AMERICA, N.A., | ||
| individually and as Syndication Agent | ||
| by | ||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Title: Managing Director | ||
7
| CITIBANK, N.A., | ||
| individually and as Syndication Agent | ||
| by | ||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Title: Managing Director | ||
| LLOYDS TSB BANK PLC, | ||
| individually and as Syndication Agent | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Title: Assistant Vice President, Corporate | ||
| Banking (USA)/Director-Project | ||
| Finance (USA) | ||
| ABN AMRO BANK N.V., | ||
| individually and as Co-Syndication Agent | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Title: Vice President/Senior Vice President | ||
| BARCLAYS BANK PLC, | ||
| individually and as Co-Syndication Agent | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: Director | ||
| SOICETE GENERALE, | ||
| individually and as Co-Syndication Agent | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Title: Director, Corporate Banking | ||
8
| THE BANK OF NEW YORK, | ||
| by | ||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Vice President | ||
| BANK OF TOKYO-MITSUBISHI TRUST CO., | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Vice President | ||
9
| BNP PARIBAS, | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| CREDIT AGRICOLE INDOZUEZ, | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: Vice President & Manager/Vice | ||
| President & Sr. Relationship Manager | ||
| FLEET NATIONAL BANK, | ||
| by | ||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| HSBC BANK USA, | ||
| by | ||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Title: First Vice President | ||
| THE INDUSTRIAL BANK OF JAPAN TRUST CO., | ||
| by | ||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: Senior Vice President | ||
| CREDIT LYONNAIS, | ||
| by | ||
| /s/ ▇▇▇▇▇▇ ▇▇▇ | ||
| Name: Atilla Koc | ||
| Title: Senior Vice President | ||
10
| NATEXIS BANQUES POPULAIRES | ||
| by | ||
| /s/ ▇▇▇▇▇▇ ▇. van Tulder/▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇ ▇. van Tulder/▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President & Manager Multinational | ||
| Group/Vice President, Multinational Group | ||
| PB CAPITAL CORPORATION, | ||
| by | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇ | ||
| Title: Managing Director, Portfolio | ||
| Management/Assistant Vice President | ||
| U.S. BANK, | ||
| by | ||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| UNION BANK OF CALIFORNIA, | ||
| by | ||
| /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| THE BANK OF NOVA SCOTIA, | ||
| by | ||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: Managing Director | ||
| INTESABCI, | ||
| by | ||
| /s/ ▇. ▇▇▇▇▇▇▇▇▇/▇. ▇▇▇▇▇▇▇▇▇ | ||
| Name: ▇. ▇▇▇▇▇▇▇▇▇/▇. ▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President/Vice President | ||