EXHIBIT 99.1
AMENDMENT NO. 4 TO 364-DAY CREDIT AGREEMENT
AMENDMENT dated as of January 21, 2003 to the 364-Day Credit Agreement
dated as of January 24, 2001 (as amended prior to the Amendment Effective Date
referred to below, the "AGREEMENT") among GENERAL XXXXX, INC. (the "COMPANY"),
XXXXXXX XXXXX BARNEY INC., as Syndication Agent, BARCLAYS BANK PLC and BANK OF
AMERICA, N.A., as Co-Documentation Agents, the several financial institutions
from time to time party thereto (the "BANKS"), and JPMORGAN CHASE BANK, as
Administrative Agent (the "AGENT").
W I T N E S S E T H :
WHEREAS, at the date hereof, there are no Loans outstanding under the
Agreement; and
WHEREAS, the parties hereto desire to amend the Agreement as set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1 . DEFINED TERMS; REFERENCES. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement has the meaning
assigned to such term in the Agreement. Each reference to "HEREOF", "HEREUNDER",
"HEREIN" and "HEREBY" and each other similar reference and each reference to
"THIS AGREEMENT" and each other similar reference contained in the Agreement
shall, after the Amendment Effective Date, refer to the Agreement as amended
hereby. The term "NOTE" defined in the Agreement shall be from and after the
date hereof the New Notes (as defined below) issued pursuant hereto.
Section 2. Amendments.
(a) The definition of Applicable Margin in Section 1.01 is amended to
read in full as follows:
"APPLICABLE MARGIN" means:
(i) with respect to Base Rate Loans, 0%; and
(ii) with respect to Offshore Rate Loans, the applicable rate
per annum set forth in the Pricing Schedule.
(b) The definition of Co-Documentation Agent in Section 1.01 is amended
by replacing "Credit Suisse First Boston" with "Bank of America, N.A.".
(c) The definition of Fee Letters in Section 1.01 is amended by (i)
replacing "and" after "December 21, 2000" with a comma and (ii) inserting "and
that certain letter agreement between the Company, X.X. Xxxxxx Securities Inc.
and JPMorgan Chase dated December 17, 2002" before the period.
(d) The following new definition is added to Section 1.01 in its
appropriate alphabetical position:
"PRICING SCHEDULE" means the schedule attached hereto and identified as
such.
(e) The definition of Ratio of Earnings to Fixed Charges in Section
1.01 is amended by changing the date "May 27, 2001" to "May 26, 2002" in the
first proviso.
(f) The definition of Revolving Termination Date in Section 1.01 is
amended by changing the date "January 22, 2003" to "January 20, 2004".
(g) Section 2.09(a) is amended by (i) changing "equal to 0.06% per
annum" in the first sentence to "at a rate per annum equal to the applicable
Facility Fee Rate set forth in the Pricing Schedule" and (ii) changing the date
"March 31, 2001" in the second sentence to "March 31, 2003".
(h) Article 2 is amended by adding the following new section:
Section 2.14. OPTIONAL INCREASE IN COMMITMENTS. At any time, if no
condition or event which constitutes a Default or an Event of Default shall have
occurred and be continuing, the Company may, if it so elects, increase the
Aggregate Revolving Commitment, either by designating a financial institution
not theretofore a Bank to become a Bank (such designation to be effective only
with the prior written consent of the Administrative Agent, which consent will
not be unreasonably withheld or delayed), or by agreeing with an existing Bank
that such Bank's Revolving Commitment shall be increased. Upon execution and
delivery by the Company and such Bank or other financial institution of an
instrument in form reasonably satisfactory to the Administrative Agent, such
existing Bank shall have a Revolving Commitment as therein set forth or such
other financial institution shall become a Bank with a Revolving Commitment as
therein set forth and all the rights and obligations of a Bank with such a
Revolving Commitment hereunder; provided:
(a) that the Company shall provide prompt notice of such
increase to the Administrative Agent, who shall promptly notify the Banks;
and
(b) that immediately after such increase is made, the Aggregate
Revolving Commitment shall not exceed $1,250,000,000.
Upon any increase in the Aggregate Revolving Commitment pursuant to
this Section 2.14, within five Business Days, the Company shall ratably prepay
(subject to Section 3.04) each Loan in part, and shall borrow from the new Banks
and/or Banks with increased Revolving Commitments, to the extent necessary in
order that all outstanding Loans are held by the Banks in proportion to their
respective Revolving Commitments after giving effect to such increase,
prepayment and borrowing.
(i) Section 5.14(a) is amended by changing the date "May 27, 2001" to
"May 26, 2002".
(j) Section 5.14(b) is amended by changing the date "November 25, 2001"
to "November 24, 2002".
(k) Section 7.06 is amended by changing the date "May 27, 2001" in the
second sentence to "May 26, 2002".
(l) The Agreement is amended by (i) adding the Pricing Schedule
attached hereto and (ii) replacing the existing Schedule 2.01 with the Schedule
2.01 attached hereto.
Section 3. CHANGES IN COMMITMENTS. With effect from and including the
Amendment Effective Date, (i) each Person listed on the signature pages hereof
which is not a party to the Agreement (each, a "NEW BANK") shall become a Bank
party to the Agreement and (ii) the Commitment of each Bank shall be the amount
set forth opposite the name of such Bank on Schedule 2.01 attached hereto. On
the Amendment Effective Date, any Bank whose Commitment is changed to zero
(each, an "EXITING BANK") shall cease to be a Bank party to the Agreement, and
all accrued fees and other amounts payable under the Agreement for the account
of each Exiting Bank shall be due and payable on such date; PROVIDED that the
provisions of Sections 3.01, 3.03, 10.04 and 10.05 of the Agreement shall
continue to inure to the benefit of each Exiting Bank after the Amendment
Effective Date.
Section 4. REPRESENTATIONS OF COMPANY. The Company represents and
warrants that (i) the representations and warranties of the Company set forth in
Article 5 of the Agreement will be true on and as of the Amendment Effective
Date and (ii) no Default or Event of Default will have occurred and be
continuing on such date.
Section 5. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.02. COUNTERPARTS. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
Section 6. EFFECTIVENESS. This Amendment shall become effective on the
date when the following conditions are met (the "AMENDMENT EFFECTIVE DATE"):
(a) the Agent shall have received from each of the Company and the
Banks a counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Agent) that such party has signed a
counterpart hereof;
(b) the Agent shall have received a duly executed Note for each of the
Banks (a "NEW NOTE"), dated on or before the date of effectiveness hereof and
otherwise in compliance with Section 2.02(b) of the Agreement;
(c) The Agent shall have received a certificate signed by a Responsible
Officer, dated as of the Amendment Effective Date, stating that:
(i) 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;
(ii) no Default or Event of Default exists; and
(iii) there has occurred since November 24, 2002, no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
(d) the Agent shall have received an opinion of Xxxxxxxxx Xxxxxxxxxx,
Deputy General Counsel of the Company, addressed to the Agents and the Banks, in
form and substance satisfactory to the Agent; and
(e) the Agent shall have received all documents the Agent may
reasonably request relating to the existence of the Company, the corporate
authority for and the validity of this Amendment, and any other matters relevant
hereto, all in form and substance satisfactory to the Agent.
Upon receipt of its New Note, each Bank (other than a New Bank) shall
cancel and return to the Company the Note previously issued to it under the
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
GENERAL XXXXX, INC.
By: /S/ XXXXX X. XXXXXXXXXXXXX
-----------------------------------------------------
Name: Xxxxx X. XxxXxxxxxxxxx
Title: Vice President, Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent and as a Bank
By: /S/ X.X. XXXXXXXX
-----------------------------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
BARCLAYS BANK PLC,
as Co-Documentation Agent and as a Bank
By: /S/ L. XXXXX XXXXXX
-----------------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Director
BANK OF AMERICA, N.A.,
as Co-Documentation Agent and as a Bank
By: /S/ XXXXX X. XXXXXXXXX
-----------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CITICORP USA, INC.
By: /S/ XXXX X. XXXXX
-----------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Citicorp, N.A. - Chicago
(000) 000-0000
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /S/ XXXXXXX XXXXX
-----------------------------------------------------
Name: Xxxxxxx XxXxx
Title: Vice President & Manager
BNP PARIBAS
By: /S/ XXXXX XXXXXX
-----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Central Region Manager
By: /S/ XXXXXXX XXXXXX
-----------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Director
By: /S/ XXXXXX X. XXXXX
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX XXXXX BANK USA
By: /S/ XXXXX XXXXX
-----------------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /S/ XXXXXXXX O'KIOKI
-----------------------------------------------------
Name: Xxxxxxxx O'Kioki
Title: Director
Banking Products Services
By: /S/ XXXX XXXXXXXXXXX
---------------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Associate Director
Banking Products Services, US
CREDIT LYONNAIS, New York Branch
By: /S/ XXX X. XXXXX
-----------------------------------------------------
Name: Xxx X. Xxxxx
Title: First Vice President
HSBC BANK USA
By: /S/ XXXXXXX X. XXXXXX
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
SUNTRUST BANK
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
U.S. BANK NATIONAL ASSOCIATION
By: /S/ XXXXX XXXXXXXX
-----------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /S/ XXXXX X. XXXXX
-----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Xxxxx Fargo Bank, National Association
By: /S/ XXXXX X. VAN METRE
-----------------------------------------------------
Name: Xxxxx x. Van Metre
Title: Vice President and Senior Banker
Xxxxx Fargo Bank, National Association
CREDIT AGRICOLE INDOSUEZ
By: /S/ XXXXXXX X. XXXXXXXXXX
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
Senior Relationship Manager
By: /S/ XXXXXXXX X. XXXX
-----------------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Senior Relationship Manager
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /S/ XXXX XXXXXX
-----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
By: /S/ XXXX XXXXXXX
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK
By: /S/ XXXX XXXXXX
-----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
KEYBANK NATIONAL ASSOCIATION
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /S/ XXXXX X. XXXXX
-----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED
By: /S/ XXXXX XXXX
-----------------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND,"
NEW YORK BRANCH
By: /S/ XXXXXX X. XXXXXX
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /S/ XXXX XXXXXXXX
-----------------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Director
STANDARD CHARTERED BANK
By: /S/ XXXX XXXXXXX
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
By: /S/ XXXXXX X. XX
-----------------------------------------------------
Name: Xxxxxx X. Xx
Title: Vice President
Standard Chartered Bank NY
SUMITOMO MITSUI BANKING
CORPORATION
By: /S/ XXXXX XXXXXX
-----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Joint General Manager
THE BANK OF NEW YORK
By: /S/ XXXX-XXXX XXXXXXX
-----------------------------------------------------
Name: Xxxx-Xxxx Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /S/ X. XXXXXX
-----------------------------------------------------
Name: X. Xxxxxx
Title: Assistant Agent
PRICING SCHEDULE
The "APPLICABLE MARGIN" for Offshore Rate Loans and the "FACILITY FEE
RATE" for any day are the respective percentages set forth below based upon the
Pricing Level and Utilization that exist on such day:
----------------------------- ---------- ----------- ----------- ----------- ----------
PRICING LEVEL LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
----------------------------- ---------- ----------- ----------- ----------- ----------
APPLICABLE MARGIN:
Revolving Loans:
Utilization # 50% 0.295% 0.400% 0.525% 0.700% 1.000%
Utilization > 50% 0.420% 0.525% 0.650% 0.825% 1.125%
Term Loans: 0.670% 0.775% 0.900% 1.075% 1.375%
----------------------------- ---------- ----------- ----------- ----------- ----------
FACILITY FEE RATE: 0.080% 0.100% 0.125% 0.175% 0.250%
----------------------------- ---------- ----------- ----------- ----------- ----------
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Schedule:
"LEVEL I" status exists at any date if, at such date, the Company's
senior unsecured long-term debt has ratings that are better than or equal to at
least two of the following three ratings: (i) A- by S&P and/or (ii) A3 by
Xxxxx'x and/or (iii) A- by Fitch.
"LEVEL II" status exists at any date if, at such date, the Company's
senior unsecured long-term debt has ratings that are better than or equal to at
least two of the following three ratings: (i) BBB+ by S&P and/or (ii) Baa1 by
Xxxxx'x and/or (iii) BBB+ by Fitch, and Level I status does not exist.
"LEVEL III" status exists at any date if, at such date, the Company's
senior unsecured long-term debt has ratings that are better than or equal to at
least two of the following three ratings: (i) BBB by S&P and/or (ii) Baa2 by
Xxxxx'x and/or (iii) BBB by Fitch, and neither Level I status nor Level II
status exists.
"LEVEL IV" status exists at any date if, at such date, the Company's
senior unsecured long-term debt has ratings that are better than or equal to at
least two of the following three ratings: (i) BBB- by S&P and/or (ii) Baa3 by
Xxxxx'x and/or (iii) BBB- by Fitch, and none of Level I status, Level II status
and Level III status exists.
"LEVEL V" status exists at any date if, at such date, no other Pricing
Level exists.
"PRICING LEVEL" refers to the determination of which of Level I status,
Level II status, Level III status, Level IV status or Level V status exists at
any date.
"UTILIZATION" means, at any date, the percentage equivalent of a
fraction (i) the numerator of which is the aggregate outstanding principal
amount of the
Loans at such date and (ii) the denominator of which is the Aggregate Revolving
Commitment at such date. If for any reason any Loans remain outstanding
following termination of the Aggregate Revolving Commitment, Utilization shall
be deemed to be 100%.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
SCHEDULE 2.01
REVOLVING
BANK COMMITMENT
JPMorgan Chase Bank $62,375,000
Citibank, N.A. $62,375,000
Bank of America, N.A. $60,750,000
Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $60,750,000
Barclays Bank PLC $60,750,000
BNP Paribas $60,750,000
Deutsche Bank AG, New York Branch $60,750,000
Xxxxxxx Xxxxx Bank USA $60,750,000
UBS AG, Stamford Branch $60,750,000
Credit Lyonnais $35,000,000
HSBC Bank USA $35,000,000
SunTrust Bank $35,000,000
U.S. Bank National Association $35,000,000
Xxxxx Fargo Bank, N.A. $35,000,000
Credit Agricole Indosuez $25,000,000
Credit Suisse First Boston, Cayman Islands Branch $25,000,000
Fleet Boston Financial $25,000,000
KeyBank National Association $25,000,000
Mellon Bank, N.A. $25,000,000
National Australia Bank Limited $25,000,000
Rabobank International New York Branch $25,000,000
Standard Chartered Bank $25,000,000
Sumitomo Mitsui Banking Corporation $25,000,000
The Bank of New York $25,000,000
The Bank of Nova Scotia $25,000,000
--------------
Total $1,000,000,000
BANK ACCESSION AGREEMENT
Reference is made to the 364-Day Credit Agreement dated as of
January 24, 2001 (as amended, the "AGREEMENT") among GENERAL XXXXX, INC. (the
"COMPANY"), XXXXXXX XXXXX BARNEY INC., as Syndication Agent, BARCLAYS BANK PLC
and BANK OF AMERICA, N.A., as Co-Documentation Agents, the several financial
institutions from time to time party thereto (the "BANKS"), and JPMORGAN CHASE
BANK, as Administrative Agent (the "AGENT"). Unless otherwise defined herein,
terms defined in the Agreement and used herein shall have the meanings given to
them in the Agreement.
The undersigned is willing to become a Bank under the
Agreement and be bound by the terms and conditions of such Agreement. Upon
execution and delivery of this Bank Accession Agreement by the parties hereto,
the undersigned hereby becomes a Bank thereunder with a Revolving Commitment as
set forth in Schedule 1 hereto and all the rights and obligations of a Bank with
such a Revolving Commitment thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Bank
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this 21st day of January, 2003.
XXXXXX BROTHERS BANK FSB
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Title: Vice President
Accepted and agreed:
GENERAL XXXXX, INC.
By: /s/Xxxxx X. XxxXxxxxxxxxx
-------------------------
Title: Vice President, Treasurer
JPMORGAN CHASE BANK, as
Administrative Agent
By: /s/ X. X. Xxxxxxxx
----------------------
Title: Vice President
Schedule 1
REVOLVING COMMITMENT AND NOTICE ADDRESS
1. Name of Bank: Xxxxxx Brothers Bank FSB
Notice Address: 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
2. Revolving Commitment: $39,250,000.00
BANK ACCESSION AGREEMENT
Reference is made to the 364-Day Credit Agreement dated as of
January 24, 2001 (as amended, the "AGREEMENT") among GENERAL XXXXX, INC. (the
"COMPANY"), XXXXXXX XXXXX XXXXXX INC., as Syndication Agent, BARCLAYS BANK PLC
and BANK OF AMERICA, N.A., as Co-Documentation Agents, the several financial
institutions from time to time party thereto (the "BANKS"), and JPMORGAN CHASE
BANK, as Administrative Agent (the "AGENT"). Unless otherwise defined herein,
terms defined in the Agreement and used herein shall have the meanings given to
them in the Agreement.
The undersigned is willing to become a Bank under the
Agreement and be bound by the terms and conditions of such Agreement. Upon
execution and delivery of this Bank Accession Agreement by the parties hereto,
the undersigned hereby becomes a Bank thereunder with a Revolving Commitment as
set forth in Schedule 1 hereto and all the rights and obligations of a Bank with
such a Revolving Commitment thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Bank
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this 21st day of January, 2003.
XXXXXX XXXXXXX BANK
By: /s/Jaap L. Tonckens
-------------------
Title: Vice President
Accepted and agreed:
GENERAL XXXXX, INC.
By: /s/Xxxxx X. XxxXxxxxxxxxx
-------------------------
Title: Vice President, Treasurer
JPMORGAN CHASE BANK, as
Administrative Agent
By: /s/ X. X. Xxxxxxxx
----------------------
Title: Vice President
Schedule 1
REVOLVING COMMITMENT AND NOTICE ADDRESS
1. Name of Bank: XXXXXX XXXXXXX BANK
Notice Address: 0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000 / 1866
2. Revolving Commitment: $60,750,000
