Exhibit 10.1
EXECUTION VERSION
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ITT INDUSTRIES, INC.
$400,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 28, 2005
Amending and Restating the
364-Day Revolving Credit Agreement
dated as of March 29, 2004,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
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J.P. MORGAN SECURITIES INC., as Sole Lead Arranger
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of March
28, 2005 (this "AMENDMENT AND RESTATEMENT") amending and
restating the 364-DAY REVOLVING CREDIT AGREEMENT dated as of
March 29, 2004, (the "CREDIT AGREEMENT"), among ITT
INDUSTRIES, INC., an Indiana corporation (the "COMPANY"), each
Borrowing Subsidiary party thereto, the Lenders party thereto,
and JPMORGAN CHASE BANK, N.A., a national banking association,
as Administrative Agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT").
The Company has requested that the Credit Agreement be amended and
restated as set forth in Section 1 below and the parties hereto are willing to
so amend the Credit Agreement. Each capitalized term used but not defined herein
has the meaning assigned thereto in the Credit Agreement.
In consideration of the agreements, provisions and covenants 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 Credit Agreement
shall be amended and restated in the form in which it shall exist immediately
prior to such effectiveness, but with the caption set forth above and the
following revisions:
(a) Section 1.01 is hereby amended as follows:
(i) Maturity Date. The definition of "Maturity Date" is hereby
amended by deleting the date "March 28, 2005" and substituting
therefor "December 16, 2005".
(ii) Applicable Percentage. The definition of the term
"Applicable Percentage" is hereby amended to read as follows:
""Applicable Percentage" shall mean, with respect to
Eurocurrency Loans, a rate per annum equal to 0.37%."
(b) Section 2.05 of the Credit Agreement is hereby amended as
follows:
(i) Section 2.05(a) is amended by deleting "0.10%" and
replacing it with "0.08%".
(ii) Section 2.05(c) is amended by deleting "0.125%" and
replacing it with "0.10%".
(c) Section 3.05 of the Credit Agreement is hereby amended by
deleting the reference therein to "December 31, 2003" and replacing it
with a reference to "December 31, 2004".
(d) Section 3.12 of the Credit Agreement is hereby amended to read
as follows:
"SECTION 3.12. Employee Pension Benefit Plans. The present aggregate
value of accumulated benefit obligations of all unfunded and underfunded
pension plans of the Company and its Subsidiaries (based on those
assumptions used for disclosure in
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corporate financial statements in accordance with GAAP) did not, as of
December 31, 2004, exceed by more than $470,200,000 the value of the
assets of all such plans. Of such $470,200,000, $200,300,000 is primarily
attributable to employee pension plans in countries where the funding of
such obligations is not required or customary and $96,900,000 relates
primarily to domestic pension plans where funding is not permitted under
current tax regulations. In these cases the Company has recorded book
reserves to meet the obligations. Trust assets totaling approximately
$10,000,000 have been established to provide for certain of the foregoing
domestic pension benefits, however, because of restrictions relating to
bankruptcy or insolvency, such funds are not included in the funded amount
of plans for purposes of GAAP."
(e) Effective Date. From and after the Effective Date (as defined
below), all references in the Credit Agreement to "the date hereof" or
other words or phrases of similar import shall be deemed references to the
date of this Amendment and Restatement.
(f) Exhibits. Each reference to "March 29, 2004" in the Exhibits to
the Credit Agreement is hereby deleted and replaced with a reference to
"March 28, 2005" and each reference to the "364-Day Credit Agreement" is
hereby deleted and replaced with a reference to the "Amended and Restated
364-Day Revolving Credit Agreement".
(g) Schedule 2.01. Schedule 2.01 to the Credit Agreement is hereby
deleted and Schedule I hereto is inserted in its place.
SECTION 2. Representations and Warranties. The Company represents
and warrants as of the Effective Date to the Lenders that:
(a) After giving effect to this Amendment and Restatement, the
representations and warranties on the part of the Company contained in the
Credit Agreement are true and correct in all material respects at and as
of the Effective Date as though made on and as of the Effective Date
(except to the extent such representations and warranties expressly relate
solely to an earlier date).
(b) After giving effect to this Amendment and Restatement, the
Company is in compliance with the covenants set forth in Article V of the
Credit Agreement.
(c) After giving effect to this Amendment and Restatement, no Event
of Default or Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment and
Restatement shall become effective on the date hereof (the "Effective Date")
subject to the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto 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 Administrative Agent shall have received a written opinion
(addressed to the Administrative Agent and the Banks and dated the
Effective Date) of Kathleen S.
3
Stolar, Esq., Vice President, Corporate Secretary and Associate General
Counsel of the Company, substantially in the form of Exhibit C to the
Credit Agreement, but updated as necessary to refer to the Credit
Agreement as amended hereby. The Company hereby requests such counsel to
deliver such opinion.
(c) The Administrative Agent 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 the
Company, the authorization of the execution, delivery and performance of
this Amendment and Restatement and the Borrowings hereunder, all in form
and substance reasonably satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by a Financial Officer of the Company,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(e) The Administrative Agent, on behalf of itself and the Banks,
shall have received all fees which they are entitled to be paid on or
prior to the Closing Date in connection with this Amendment and
Restatement, as separately agreed upon in writing.
(f) On the Effective Date, no Loans shall be outstanding under the
Credit Agreement and all interest, fees and other amounts accrued for the
accounts of or owing to the Lenders and Administrative Agent under the
Credit Agreement shall have been paid, whether or not at the time due and
payable.
SECTION 4. Agreement. Except as specifically stated herein, the
provisions of the Credit Agreement are and shall remain in full force and
effect. As used therein, the terms "Credit Agreement", "this Agreement",
"herein", "hereunder", "hereinafter", "hereto", "hereof" and words of similar
import shall, unless the context otherwise requires, refer to the Credit
Agreement as amended hereby.
SECTION 5. Governing Law. THIS AMENDMENT AND RESTATEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 6. Counterparts. This Amendment and Restatement 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 contract.
Delivery of an executed counterpart of a signature page of this Amendment and
Restatement by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment and Restatement.
SECTION 7. Expenses. The Company agrees to reimburse the
Administrative Agent for all expenses incurred in connection with this Amendment
and Restatement, including the fees, charges and disbursements of Cravath,
Swaine & Moore LLP, counsel for the Administrative Agent.
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.
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[signature pages follow]
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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.
ITT INDUSTRIES, INC., as Borrower,
by /s/ DONALD E. FOLEY
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Name: DONALD E. FOLEY
Title: SENIOR VICE PRESIDENT
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by /s/ BARBARA R. MARKS
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Name: BARBARA R. MARKS
Title: VICE PRESIDENT
THE BANK OF TOKYO-MITSUBISHI LTD.,
NEW YORK BRANCH,
by /s/ LINDA TAM
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Name: LINDA TAM
Title: AUTHORIZED SIGNATORY
CITICORP NORTH AMERICA, INC.,
by /s/ DIANE L. POCKING
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Name: DIANE L. POCKING
Title: VICE PRESIDENT
DEUTSCHE BANK AG NEW YORK BRANCH,
by /s/ CHRISTIAN DALLWITZ
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Name: CHRISTIAN DALLWITZ
Title: DIRECTOR
by /s/ ROLF-PETER MIKOLAYCZYK
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Name: ROLF-PETER MIKOLAYCZYK
Title: MANAGING DIRECTOR
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SOCIETE GENERALE,
By /s/ Maria Iarriccio
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Name: Maria Iarriccio
Title: Vice President
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ITT INDUSTRIES, INC.
364-DAY REVOLVING CREDIT FACILITY AGREEMENT
SCHEDULE I
INSTITUTION COMMITMENT
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JPMorgan Chase Bank, N.A. $ 100,000,000
Citicorp North America, Inc. $ 100,000,000
Deutsche Bank AG New York Branch $ 100,000,000
The Bank of Tokyo-Mitsubishi Ltd., New York Branch $ 50,000,000
Societe Generale $ 50,000,000
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TOTAL $ 400,000,000
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[ITT INDUSTRIES LOGO]
ITT INDUSTRIES, INC.
4 West Red Oak Lane
White Plains, NY 10604
tel 914 641.2000
March 28, 2005 fax 914 696.2950
To the Lenders set forth in Schedule I
to the Amended and Restated
364-Day Revolving Credit Facility
Agreement dated as of March 28, 2005,
among ITT Industries, Inc., each Borrowing
Subsidiary party thereto, such Lenders and
JP Morgan Chase Bank, and as Administrative
Agent for such Lenders.
c/o JP Morgan Chase Bank
270 Park Avenue
Dear Sirs:
I am Vice President, Associate General Counsel and Secretary of ITT
Industries, Inc., an Indiana corporation (the "Company"), and, as such, am
generally familiar with its business and affairs. I am also familiar with the
Amended and Restated 364-Day Revolving Credit Agreement dated as of March 28,
2005 (the "Agreement"), among the Company, each Borrowing Subsidiary party
thereto, the Lenders listed in Schedule I thereto (the "Lenders") and JP Morgan
Chase Bank, as Administrative Agent for such Lenders. Unless the context
requires otherwise, capitalized words not defined herein shall have the meaning
given in the Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Company (i) is a corporation duly organized and validly existing
under the laws of the State of Indiana, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (iii) is qualified to do business in every jurisdiction within the
United States where such qualification is required, except where the failure so
to qualify would not result in a Material Adverse Effect on the Company, and
(iv) has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Agreement and to borrow funds thereunder.
Note: Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Amended and Restated 364-Day
Revolving Credit Agreement (the "Agreement") dated as of March 28, 2005,
among ITT Industries, Inc., the lenders listed in Schedule I thereto, and
JP Morgan Chase Bank, as Administrative Agent.
2. The execution, delivery and performance by the Company of the Agreement
and the borrowings of the Company thereunder (collectively, the "Transactions")
(i) have been duly authorized by all requisite corporate action and (ii) will
not (a) violate (1) any provision of law, statute, rule or regulation (including
without limitation, the Margin Regulations), or the articles of incorporation or
other constitutive documents or by-laws of the Company, (2) any order of any
governmental authority or (3) any provision of any indenture, agreement or other
instrument to which the Company is a party or by which it or its property is or
may be bound, (b) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (c) result in the creation or
imposition of any lien upon any property or assets of the Company.
3. The Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject as to the
enforceability of rights and remedies to any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general
application relating to or affecting the enforcement of creditors' rights from
time to time in effect.
4. No action, consent or approval of, registration or filing with, or any
other action by, any government authority is or will be required in connection
with the Transactions, except such as have been made or obtained and are in full
force
5. Neither the Company nor any of its subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
I am a member of the bar of the State of New York and express no opinion
as to any matter relating to any law other than the law of the State of New
York, the Indiana Business Corporation Law and the Federal law of the United
States
This opinion is rendered to you in connection with the above described
transactions and may not be relied upon by you for any other purpose, or relied
upon by, or furnished to, any other person, firm or corporation without my prior
written consent.
Very truly yours,
/s/ Kathleen S. Stolar
Kathleen S. Stolar
Vice President,
Associate General Counsel and Secretary
Exhibit C
March 28, 2005
To: JPMorgan Chase Bank as Administrative Agent
Re: ITT Industries, Inc. 364-Day Revolving Credit Facility Agreement
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Dear Sir/Madam:
This certificate is being furnished pursuant to Section 3(d) of the Amended and
Restated Credit Agreement dated as of March 28th, 2005 (the "Restatement and
Amendment") amending and restating the 364-Day Revolving Credit Facility
Agreement (the "Agreement") dated as of March 29, 2004 between ITT Industries,
Inc. (the "Corporation"), and JPMorgan Chase Bank, as Administrative Agent.
I, the undersigned, hereby state that in the course of the performance of my
duties as Treasurer of the Corporation, I would normally obtain knowledge of any
default by the Corporation in the performance or fulfillment of any covenant,
agreement or condition contained in the Agreement. To my knowledge, as of the
Effective Date, there has been no Event of Default as defined in the Agreement.
Further, to my knowledge, the representations and warranties set forth in
Article III, Sections 3.05 (as amended by Section I(c) of the Restatement and
Amendment), 3.06. 3.07. 3.09, 3.10, 3.11, 3.12 (as amended Section I(d) of the
Restatement and Amendment are true and correct in all material respects on as of
the Effective Date, except to the extent such representations and warranties
expressly relate to an earlier date.
ITT Industries, Inc.
/s/ Donald E. Foley
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Donald E. Foley
Senior Vice President - Treasurer &
Director of Taxes
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