EXHIBIT 99.4
AMENDMENT NO. 3 TO CREDIT AGREEMENT
This Amendment No. 3 (this "Amendment") is entered into as of August
26, 2002 by and among General Xxxxx, Inc., a Delaware corporation (the
"Company"), the several financial institutions party hereto (collectively, the
"Banks"; individually, a "Bank"), JPMorgan Chase Bank (as successor in interest
to 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 (as amended 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.
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 definition of Ratio of Earnings to Fixed
Charges in Section 1.01 is amended by adding the following proviso at
the end of the first sentence thereof:
; PROVIDED further that for any period which includes
one or more of the fiscal quarters ended November 25, 2001, February
24, 2002 and May 26, 2002, such computation shall be adjusted to
exclude the effect of unusual items in the amounts of $109 million, $39
million and $57 million, respectively, for such fiscal quarters.
(b) The first sentence of Section 7.06 is amended to
read as follows:
The Company shall not permit its Ratio of Earnings to
Fixed Charges as determined for any period of four (4) consecutive
fiscal quarters of the Company to be less than (i) for any such period
ending on or prior to May 26, 2002 or on or after May 25, 2003, 2.5 to
1.0; (ii) for any such period ending on August 25, 2002 or November 24,
2002, 2.0 to 1.0 and (iii) for such period ending on February 23, 2003,
2.25 to 1.0.
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 this Amendment executed by
the Company and the Majority Banks.
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 XxxXxxxxxxxxx
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Title: Vice President, Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent and as a Bank
By: /s/ X. X. Xxxxxxxx
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Title: Vice President
------------------------------------
CITIBANK, N.A.,
as Syndication Agent
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
UBS AG, STAMFORD BRANCH, as Co-
Documentation Agent and as a Bank
By: /s/ Xxxxxxxx X'Xxxxx
---------------------------------------
Name: Xxxxxxxx X'Xxxxx
-------------------------------------
Title: Director, Banking Products Services
------------------------------------
By: /s/ Xxxxxxx X. Saint
---------------------------------------
Name: Xxxxxxx X. Saint
-------------------------------------
Title: Associate Director, Banking
Products Services US
------------------------------------
[Signature Page to Amendment No. 3 to 364-Day General Xxxxx Credit Agreement]
DEUTSCHE BANK AG NEW YORK BRANCH,
as Co-Documentation Agent and as a Bank
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
-------------------------------------
Title: Director
------------------------------------
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
CITICORP USA, INC.,
as a Bank
By: /s/ Xxxxx Xxxxxxxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxx Xxxxx
-------------------------------------
Title: Managing Director
------------------------------------
BANK OF AMERICA, N.A.,
as a Bank
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
------------------------------------
BARCLAYS BANK PLC,
as a Bank
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------
Title: Director
------------------------------------
CREDIT SUISSE FIRST BOSTON,
as a Bank
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: Director
------------------------------------
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Title: Assistant Vice President
------------------------------------
[Signature Page to Amendment No. 3 to 364-Day General Xxxxx Credit Agreement]
AIB INTERNATIONAL FINANCE,
as a Bank
By: /s/ Xxxxx Xxxxxxxx
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Title: Manager
------------------------------------
BANCA NAZIONALE DEL LAVORO, SPA,
as a Bank
By:
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Title:
------------------------------------
BANQUE ET CAISSE D'EPARGNE,
as a Bank
By: /s/ Xxxx Xxxxxx Xxxxx
---------------------------------------
Title: Deputy Head of Department
------------------------------------
By: /s/ Xxxx Xxxx
---------------------------------------
Title: Directeur adjoint Chef de Service
------------------------------------
MIZUHO CORPORATE BANK, LTD., As Successor
to DAI-ICHI KANGYO BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Senior Vice President and Group Head
------------------------------------
FARM CREDIT BANK OF WICHITA,
as a Bank
By:
---------------------------------------
Title:
------------------------------------
[Signature Page to Amendment No. 3 to 364-Day General Xxxxx Credit Agreement]
FARM CREDIT SERVICE OF AMERICA, PCA,
as a Bank
By:
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Title:
------------------------------------
SUMITOMO MITSUI BANKING CORPORATION,
as a Bank
By:
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Title:
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UFJ BANK LIMITED,
as a Bank
By: Xxx X. Xxxxxxx
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Title: Vice President
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[Signature Page to Amendment No. 3 to 364-Day General Xxxxx Credit Agreement]
