EXHIBIT 99.2
AMENDMENT NO. 1 TO CREDIT AGREEMENT
-----------------------------------
This Amendment No. 1 (this "Amendment") is entered into as of November 9,
2001 by and among General Xxxxx, Inc., a Delaware corporation (the "Company"),
the several financial institutions party hereto (collectively, the "Banks";
individually, a "Bank"), Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, Citibank, N.A., as Syndication Agent, and UBS AG, Stamford
Branch and Deutsche Bank AG New York Branch, as Co-Documentation Agents.
RECITALS
--------
A. The Company, the Agents and the Banks are party to that certain 364-Day
Credit Agreement dated as of October 30, 2001 (the "Credit Agreement"). Unless
otherwise specified herein, capitalized terms used in this Amendment shall have
the meanings ascribed to them by the Credit Agreement.
B. The Company, the Agents and the Banks wish to amend the Credit Agreement
on the terms and conditions set forth below.
C. The Banks are willing to increase their Revolving Commitments, as more
fully set forth herein.
Now, therefore, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date" (as
defined below), the Credit Agreement shall be amended as follows:
(a) The cover page of the Credit Agreement shall be amended
by deleting the dollar amount "$4,950,000,000" and replacing such
dollar amount with the dollar amount "$6,000,000,000."
(b) The definition of "Aggregate Revolving Commitment" set
forth in Section 1.01 of the Credit Agreement is amended by deleting
the "Four Billion Nine Hundred Fifty Million Dollars" ($4,950,000,000)
and replacing such dollar amount with the dollar amount "Six Billion
Dollars ($6,000,000,000)."
(c) The definition of "Revolving Termination Date" set forth
in Section 1.01 of the Credit Agreement shall be amended by deleting
clause (d) thereof in its entirety and replacing such clause with the
following:
"(d) the date on which the Net Cash Proceeds of all
Prepayment Events occurring after the Closing Date aggregate
$6,000,000,000 or more."
(d) The following new definitions are inserted into Section 1.01 of
the Credit Agreement in appropriate alphabetical order:
"Net Cash Proceeds" of any Prepayment Event shall mean (a)
with respect to the issuance of Indebtedness described in clause (a)
of the definition of "Prepayment Event," the aggregate cash proceeds
received by the Company or any Subsidiary pursuant to such issuance,
net of the direct costs relating to such issuance (including sales and
underwriter's commissions and legal, accounting, rating agency and
investment banking fees), (b) with respect to the disposition of
assets described in clause (b) of such definition, the aggregate cash
proceeds received by the Company or any of its Subsidiaries pursuant
to and in consideration for such disposition, net of reasonable and
customary transaction costs, fees, expenses and taxes attributable to
such transaction, and (c) with respect to the disposition of assets
described in clause (c) of such definition, the aggregate cash
proceeds received by the Company or any of its Subsidiaries, net of an
escrow deposit of $5,000,000 required pursuant to the applicable asset
purchase agreement and net of reasonable and customary transaction
costs, fees, expenses and taxes attributable to such transaction.
"Prepayment Event" shall mean any of (a) the issuance by the
Company or any Subsidiary of any new public or private Indebtedness
which matures 364 days or more after the date of issuance thereof, (b)
any disposition of all or a portion of Pillsbury's joint venture
interest in Ice Cream Partners, LLC, or (c) any disposition of any
assets of the Company or any of its Subsidiaries to International
Multifoods Corporation.
(e) Section 2.07(b) of the Credit Agreement shall be deleted in its
entirety and replaced with the following:
(b) If, at any time after the Closing Date, the Company
anticipates that any Prepayment Event is going to occur, the Company
shall, at least two Business Days prior to the anticipated Prepayment
Event, notify the Administrative Agent of the estimated Net Cash
Proceeds, if any, of such Prepayment Event to be received by the
Company or any of its Subsidiaries in respect thereof. Promptly upon
receipt by the Company or any of its Subsidiaries, as the case may be,
of the Net Cash Proceeds of such Prepayment Event, the Company shall
notify the Administrative Agent of the occurrence of such Prepayment
Event and the amount of Net Cash Proceeds received in connection
therewith and the Aggregate Revolving Commitment shall be
automatically permanently reduced by an amount equal to such Net Cash
Proceeds. Any such reduction of the Aggregate Revolving Commitment
shall be applied to each Bank's Revolving Commitment in accordance
with such Bank's Commitment Percentage. If as a result of such
reduction, the aggregate principal amount of outstanding Revolving
Loans shall exceed the Aggregate Revolving Commitment
then in effect, the Company shall immediately prepay the Revolving
Loans by an amount equal to such excess, together with interest
accrued thereon and any amounts required pursuant to Section 3.04.
(f) Schedule 2.01 to the Credit Agreement shall be deleted in its
entirety and replaced with Schedule 2.01, attached to this Amendment.
2. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) The Company has the requisite power and authority and
legal right to execute and deliver this Amendment and to perform its
Obligations hereunder. The execution and delivery by the Company of
this Amendment and the performance of its Obligations hereunder have
been duly authorized by all necessary corporate action, and this
Amendment constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency or similar law affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability;
(b) Each of the representations and warranties contained in
the Credit Agreement is true and correct in all material respects on
and as of the date hereof as if made on the date hereof; and
(c) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
3. Effective Date. Section 1 of this Amendment shall become effective
upon receipt by the Administrative Agent of all of the following, in form and
substance satisfactory to the Administrative Agent and each Bank and in
sufficient copies for the Administrative Agent and each Bank:
(a) this Agreement executed by the Company, each Agent and
each Bank;
(b) copies of the resolutions of the board of directors of
the Company approving and authorizing the execution, delivery and
performance by the Company of the Amendment and the other Loan
Documents to be delivered hereunder, and authorizing the borrowing of
the Loans, certified as of the date hereof by the Secretary or an
Assistant Secretary of the Company;
(c) A certificate of the Secretary or Assistant Secretary of
the Company, certifying the names and true signatures of the officers
of the Company authorized to execute, deliver and perform the
Amendment and all other Loan Documents to be delivered hereunder and
certifying that the articles or certificate of incorporation and
by-laws of the Company are in full force and effect and have not been
amended since the Closing Date;
(d) A bring-down good standing certificate for the Company
from the Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation by facsimile, dated the date
hereof;
(e) An opinion of Xxxxxxxxx Xxxxxxxxxx, Assistant General
Counsel of the Company, addressed to the Agents and the Banks, in form
and substance satisfactory to the Administrative Agent;
(f) The Company shall have repaid all Loans, together with
interest and fees with respect thereto and shall have paid all accrued
and unpaid fees, costs and expenses to the extent then due and payable
on the date hereof, together with Attorney Costs of Xxxxxx to the
extent invoiced prior to or on the Effective Date, together with such
additional amounts of Attorney Costs as shall constitute Xxxxxx'x
reasonable estimate of Attorney Costs incurred or to be incurred
through the closing proceedings, provided that such estimate shall not
preclude final settling of accounts between the Company and Xxxxxx
thereafter; including any such costs, fees and expenses arising under
or referenced in Sections 3.01, 10.04 and the Fee Letter;
(g) A certificate signed by a Responsible Officer, dated as
the date hereof, stating that the representations and warranties
contained in Article 5 are true and correct on and as of such date, as
though made on and as of such date; no Default or Event of Default
exists; and
(h) such other approvals, opinions, documents or materials
as the Administrative Agent or any Bank may reasonably request.
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of any Agent or Bank under the Credit Agreement or any Loan Document,
nor constitute a waiver of any provision of the Credit Agreement or
any Loan Document, except as specifically set forth herein. Upon the
effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
5. Costs and Expenses. The Company hereby affirms its obligation under
Section 10.4 of the Credit Agreement to pay or reimburse Xxxxxx (including in
its capacity as Administrative Agent) within fifteen Business Days after demand
(subject to Section 4.01(e) of the Credit Agreement) for all reasonable,
demonstrable costs and out-of-pocket expenses incurred by Xxxxxx (including in
its capacity as Administrative Agent) in connection with the development,
preparation, delivery and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), the Credit
Agreement, any Loan Document and any other documents prepared in connection
therewith, including but not limited
to this Amendment, and the consummation of the transactions contemplated hereby
and thereby, including the reasonable Attorney Costs incurred by Xxxxxx.
6. GOVERNING LAW AND JURISDICTION.
(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
AGENTS AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AMENDMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE COMPANY, THE AGENTS AND THE BANKS CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF THE COMPANY, THE AGENTS AND THE BANKS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE COMPANY, THE AGENTS AND THE BANKS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
7. 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 purposes.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
[signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
GENERAL XXXXX, INC.
By: /s/ Xxxxx X. XxxXxxxxxxxxx
------------------------------------
Title: Vice President, Treasurer
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
CITIBANK, N.A.,
as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Vice President
------------------------------------
UBS AG, STAMFORD BRANCH, as Co-
Documentation Agent and as a Bank
By: /s/ Xxxxxxx X. Saint
------------------------------------
Name: Xxxxxxx X. Saint
------------------------------------
Title: Associate Director, Banking Products
------------------------------------
Services, US
------------------------------------
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------
Title: Associate Director, Banking Products
------------------------------------
Services, US
------------------------------------
[signature page to Amendment No. 1 to 364-Day General Xxxxx Credit Agreement]
DEUTSCHE BANK AG NEW YORK BRANCH,
as Co-Documentation Agent and as a Bank
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxx
--------------------------------
Title: Managing Director
--------------------------------
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxx
--------------------------------
Title: Vice President
--------------------------------
CITICORP USA, INC.,
as a Bank
By: /s/ Xxxx X. X'Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
BANK OF AMERICA, N.A.,
as a Bank
By: /s/ Xxxx Xxxxxxx
--------------------------------
Title: Managing Director
--------------------------------
BARCLAYS BANK PLC,
as a Bank
By: /s/ L. Xxxxx Xxxxxx
--------------------------------
Title:
--------------------------------
CREDIT SUISSE FIRST BOSTON,
as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: Director
--------------------------------
By: /s/ Xxx Xxxxx
--------------------------------
Title: Director
--------------------------------
[signature page to Amendment No. 1 to 364-Day General Xxxxx Credit Agreement]
SCHEDULE 2.01
BANK REVOLVING COMMITMENT
Xxxxxx Guaranty Trust Company of New York $ 857,500,000
Citicorp USA, Inc. $ 857,500,000
Deutsche Bank AG New York Branch $ 857,000,000
UBS AG, Stamford Branch $ 857,000,000
Bank of America, N.A. $ 857,000,000
Barclays Bank PLC $ 857,000,000
Credit Suisse First Boston $ 857,000,000
--------------
Aggregate Revolving Commitment $6,000,000,000
