AMENDMENT NO. 1 TO FIVE-YEAR CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 1 TO FIVE-YEAR CREDIT AGREEMENT
AMENDMENT dated as of October 9, 2007 to the Five-Year Credit Agreement dated as of October 21, 2005 (the “Agreement”) among GENERAL XXXXX, INC., a Delaware corporation (the “Company”), the several financial institutions from time to time party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (the “Agent”).
W I T N E S S E T H :
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, on and as of the Amendment Effective Date, refer to the Agreement as amended hereby.
SECTION 2. Amendments. (a) The definitions of “Material Adverse Effect” and “Ratio of Earnings to Fixed Charges” in Section 1.01 are amended to read as follows:
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, any of the operations, business, properties or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Company to perform under any Loan Document and avoid any Event of Default; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Loan Document.
“Ratio of Earnings to Fixed Charges” means the Ratio of Earnings to Fixed Charges as reported by the Company in its most recent Form 10-K Annual Report filed with the Securities and Exchange Commission or in its most recent officer’s certificate delivered pursuant to Section 6.01(c), provided that the components of the numerator and denominator of such ratio are computed in each such filing or certificate in the same manner as computed in the Company’s Form 10-K Annual Report for the period ended May 27, 2007. For purposes of computing this ratio, earnings represent earnings before income taxes and after-tax
earnings of joint ventures, distributed income of equity investees, fixed charges, and amortization of capitalized interest, net of interest capitalized. Fixed charges represent gross interest expense (excluding interest on taxes) and subsidiary preferred distributions to minority interest holders, plus one-third (the proportion deemed representative of the interest factor) of rent expense.
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(b) |
The last sentence of Section 5.10 is amended to read as follows: |
Except as disclosed in the Company’s annual report on Form 10-K for the fiscal year ended May 27, 2007, there is no tax assessment against the Company or any of its Subsidiaries which, if sustained, would have a Material Adverse Effect.
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(c) |
The last sentence of Section 6.01 is amended to read as follows: |
Any financial statement or report required to be delivered pursuant to this Section 6.01 or Section 6.02(b) shall be deemed to have been delivered on the date on which the Company posts such financial statement on its website on the Internet at xxx.xxxxxxxxxxxx.xxx or when such financial statement is posted on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Company shall give notice of any such posting to the Administrative Agent (who shall then give notice of any such posting to the Banks); provided, further, that the Company shall deliver paper copies of any delivery referred to in this Section 6.01 to the Administrative Agent if the Administrative Agent requests the Company to deliver such paper copies until notice to cease delivering such paper copies is given by the Administrative Agent.
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(d) |
The second sentence of Section 7.06 is amended to read as follows: |
The Company shall compute its Ratio of Earnings to Fixed Charges in the same manner as computed in the Company’s Form 10-K Annual Report for the period ended May 27, 2007 and shall report such ratio to the Administrative Agent on a quarterly basis concurrently with the delivery of the financial statements referred to in subsections 6.01(a) and (b).
SECTION 3. 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 4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
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SECTION 5. 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 as of the date hereof on the date (“Amendment Effective Date”) when the Agent shall have received from each of the Company and the Majority 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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GENERAL XXXXX, INC. | |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx | |
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Title: Vice President, Treasurer | |
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JPMORGAN CHASE BANK, N.A. as Administrative Agent and as a Bank | |
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By: |
/s/ Xxxx Xxxx |
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Name Xxxx Xxxx | |
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Title: Vice President | |
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CITIBANK, N.A. | |
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By: |
/s/ Xxxxx X. Xxx |
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Name: Xxxxx X. Xxx | |
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Title: Vice President | |
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BANK OF AMERICA, N.A. | |
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By: |
/s/ Xxxxx X. Xxxxxxxxx |
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Name: Xxxxx X. Xxxxxxxxx | |
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Title: Senior Vice President | |
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BARCLAYS BANK PLC | |
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By: |
/s/ Xxxxxxxx Xxxx |
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Name: Xxxxxxxx Xxxx | |
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Title: Director | |
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DEUTSCHE BANK AG NEW YORK BRANCH | |
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By: |
/s/ Xxxxx Xxxxxxxxx |
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Name: Xxxxx Xxxxxxxxx | |
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Title: Vice President | |
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By: |
/s/ Xxxx X. Xxx |
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Name: Xxxx X. Xxx | |
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Title: Vice President | |
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XXXXX FARGO BANK, NATIONAL ASSOCIATION | |
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By: |
/s/ Xxxxxxx X. Xxxxxxx |
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Name: Xxxxxxx X. Xxxxxxx | |
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Title: Vice President | |
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CALYON NEW YORK BRANCH | |
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By: |
/s/ Xxxxx Xxxxxx |
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Name: Xxxxx Xxxxxx | |
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Title: Managing Director | |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: Xxxx Xxxxxxxxxx | |
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Title: Director | |
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CREDIT SUISSE FIRST BOSTON | |
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By: |
/s/ Xxxx Xxxxxx |
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Name: Xxxx Xxxxxx | |
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Title: Director | |
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By: |
/s/ Xxxxx Xxxx |
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Name: Xxxxx Xxxx | |
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Title: Assistant Vice President | |
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XXXXXX BROTHERS COMMERCIAL BANK | |
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By: |
/s/ Xxxxx XxXxxx |
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Name: Xxxxx XxXxxx | |
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Title: Authorized Signatory | |
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XXXXXXX XXXXX BANK USA | |
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By: |
/s/ Xxxxx Xxxxx |
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Name: Xxxxx Xxxxx | |
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Title: Director | |
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XXXXXX XXXXXXX BANK | |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx | |
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Title: Authorized Signatory | |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | |
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx |
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Name: Xxxxxx Xxxxxxxxxxxx | |
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Title: Vice President & Manager | |
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U.S. BANK NATIONAL ASSOCIATION | |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: Xxxxx Xxxxxxxx | |
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Title: Vice President | |
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XXXXXXX STREET COMMITMENT CORPORATION (Recourse only to assets of Xxxxxxx Street Commitment Corporation) | |
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By: |
/s/ Xxxx Xxxxxx |
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Name: | |
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Title: | |
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BNP PARIBAS | |
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By: |
/s/ Jo Xxxxx Xxxxxx |
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Name: Jo Xxxxx Xxxxxx | |
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Title: Managing Director | |
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/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx | |
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Title: Director | |
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MELLON BANK, N.A. | |
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By: |
/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx | |
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Title: First Vice President | |
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MIZUHO CORPORATE BANK, LTD. | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx | |
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Title: Deputy General Manager | |
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COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., | |
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By: |
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Name: | |
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Title: | |
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SUMITOMO MITSUI BANKING CORPORATION | |
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By: |
/s/ Xxxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxxx Xxxxxxxxx | |
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Title: General Manager | |
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SUNTRUST BANK | |
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By: |
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Name: | |
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Title: | |
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THE BANK OF NEW YORK | |
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By: |
/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx | |
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Title: Vice President | |
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ABN AMRO BANK N.V. | |
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By: |
/s/ Xxxx Xxxxx |
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Name: Xxxx Xxxxx | |
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Title: Managing Director | |
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By: |
/s/ Xxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxx | |
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Title: Associate | |
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AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED | |
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By: |
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Name: | |
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Title: | |
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BANCO SANTANDER CENTRAL HISPANO, S.A. | |
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By: |
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Name: | |
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Title: | |
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NATIONAL AUSTRALIA BANK | |
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By: |
/s/ Xxxxxxxx Xxxx |
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Name: Xxxxxxxx Xxxx | |
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Title: Director | |
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ROYAL BANK OF CANADA | |
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By: |
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Name: | |
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Title: | |
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SOCIETE GENERALE | |
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By: |
/s/ Xxxxxxxx X. Xxxxxxx |
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Name: Xxxxxxxx X. Xxxxxxx | |
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Title: Director | |
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STANDARD CHARTERED BANK | |
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By: |
/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx | |
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Title: Managing Director | |
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WACHOVIA BANK, NATIONAL ASSOCIATION | |
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By: |
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Name: | |
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Title: | |
