Contract
EXHIBIT 10.5
Execution
Copy
SECOND AMENDMENT, dated as of June 17, 2010 (this
“Amendment”), to the Credit Agreement, dated as
of November 28, 2006 (as amended and restated as of
May 22, 2007, the ‘‘Credit
Agreement”), among XXXX XXXXX XXXXXX CORPORATION, a
Delaware corporation (the ‘‘Borrower”),
POLO JP ACQUI B.V., a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands with its
corporate seat in Amsterdam, the Netherlands (the “Term
Borrower”), the several lenders from time to time
parties thereto (collectively, the “Lenders”)
and JPMORGAN CHASE BANK, N.A., as administrative agent for the
Lenders (in such capacity, the “Administrative
Agent”).
W I T N E S
S E T H :
WHEREAS, the Borrower, the Term Borrower, the Lenders and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrower and the Term Borrower have requested that
the Credit Agreement be amended as set forth herein; and
WHEREAS, the Lenders are willing to agree to such amendment on
the terms set forth herein;
NOW, THEREFORE, in consideration of the premises contained
herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise
defined herein, terms which are defined in the Credit Agreement
and used herein (and in the recitals hereto) as defined terms
are so used as so defined
2. Amendments to
Section 1.01. (a) Section 1.01
of the Credit Agreement is hereby amended by adding the
following definition in proper alphabetical order:
‘‘Fitch” means Fitch Ratings Inc.
(b) Section 1.01 of the Credit Agreement is hereby
amended by deleting therefrom the definition of
“Permitted Investments” and substituting
therefor the following:
‘‘Permitted
Investments” means:
(a) direct obligations of, or obligations the principal of
and interest on which are directly and fully guaranteed or
insured by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full
faith and credit of the United States of America);
(b) investments in commercial paper having, at such date of
acquisition, a credit rating of at least
A-2 from
S&P or
P-2 from
Xxxxx’x;
(c) investments in certificates of deposit, Eurocurrency
time deposits, banker’s acceptances and time deposits
maturing within three years from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any Lender or any commercial bank
which has a combined capital and surplus and undivided profits
of not less than $100,000,000;
(d) repurchase agreements with a term of not more than
180 days for securities described in clause (a) above
and entered into with a financial institution satisfying the
criteria described in clause (c) above;
(e) securities with maturities of three years or less from
the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States or by any
political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the
securities of which state, commonwealth or territory, political
subdivision, taxing authority or foreign government (as the case
may be) are rated, at such date of acquisition, at least A by
S&P or A2 by Xxxxx’x;
(f) securities with maturities of three years or less from
the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the
requirements of clause (c) of this definition;
(g) shares of money market funds that (i) comply with
the criteria set forth in (a) Securities and Exchange
Commission
Rule 2a-7
under the Investment Company Act of 1940 or (b) Securities
and Exchange Commission
Rule 3c-7
under the Investment Company Act of 1940 and (ii) have
portfolio assets of at least (x) in the case of funds that
invest exclusively in assets satisfying the requirements of
clause (a) of this definition, $250,000,000 and (y) in
all other cases, $500,000,000;
(h) in the case of investments by any Foreign Subsidiary,
obligations of a credit quality and maturity comparable to that
of the items referred to in clauses (a) through
(g) above that are available in local markets; and
(i) corporate debt obligations with a Xxxxx’x,
S&P, or Fitch rating of Aa3/AA-/AA- or better, or their
equivalent, as follows:
(i) corporate notes and bonds; and
(ii) medium term notes.
3. Effectiveness of
Amendment. This Amendment shall become
effective as of the date the Administrative Agent shall have
received counterparts of this Amendment duly executed by the
Borrower, the Term Borrower and Lenders having Revolving Credit
Exposures, unused Commitments and outstanding Term Loans
representing more than 50% of the sum of the total Revolving
Credit Exposures, unused Commitments and outstanding Term Loans.
4. Representations and
Warranties. On and as of the date hereof, the
Borrower and the Term Borrower hereby confirm, reaffirm and
restate the representations and warranties set forth in
Article III of the Credit Agreement mutatis
mutandis, except to the extent that such representations
and warranties expressly relate to a specific earlier date in
which case the Borrower and the Term Borrower hereby confirm,
reaffirm and restate such representations and warranties as of
such earlier date.
5. Continuing Effect; No Other
Amendments. Except as expressly provided
herein, all of the terms and provisions of the Credit Agreement
are and shall remain in full force and effect.
6. Counterparts. This Amendment
may be executed in any number of counterparts by the parties
hereto (including by facsimile or electronic transmission), each
of which counterparts when so executed shall be an original, but
all the counterparts shall together constitute one and the same
instrument.
7. GOVERNING LAW. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered in New York, New
York by their proper and duly authorized officers as of the day
and year first above written.
XXXX XXXXX XXXXXX CORPORATION
| By: |
|
Name:
Title:
POLO JP ACQUI B.V.
| By: |
|
Name:
Title:
JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a
Lender
| By: |
|
Name:
Title:
[LENDER]
| By: |
|
Name:
Title:
SECOND
AMENDMENT TO XXXX XXXXX XXXXXX CORPORATION CREDIT AGREEMENT
DATED AS OF NOVEMBER 28, 2006
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