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Exhibit 10.5
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"),
dated as of March 4, 1999 is entered into by and among XXXXXXXX XXXXXXXXXXXX, a
Delaware corporation (the "Borrower"), the banks, financial institutions and
other institutional lenders (the "Initial Lenders") listed on the signature
pages hereof, Bank of America N.T. & S.A. ("BankAmerica"), as administrative
agent (the "Administrative Agent"), initial issuing bank (the "Initial Issuing
Bank"), and syndication agent, and Citibank, N.A. ("Citibank"), as documentation
agent (the "Documentation Agent") and syndication agent (together with
BankAmerica, the "Syndication Agents"), for the Lender Parties (as hereinafter
defined), agree as follows.
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to the U.S. $400,000,000.00 Credit Agreement, dated as of March 11, 1998
(the "Credit Agreement"), pursuant to which the Lenders have extended certain
credit facilities to the Borrower;
WHEREAS, the Borrower, the Lenders, and the Administrative Agent now
hereby wish to amend the Credit Agreement in certain respects, all as set forth
in greater detail below;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned in the Credit Agreement.
2. Amendment to Credit Agreement.
(a) Amendment to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended to add each of the following terms in its property
alphabetical order:
"364-Day Credit Agreement" means the U.S. $200,000,000 Credit
Agreement (364-Day) dated as of March 4, 1999 among the Borrower,
Bank of America National Trust & Savings Association as
Administrative Agent and Syndication Agent, Citibank, N.A. as
Documentation Agent and Syndication Agent, and the other
financial institutions party thereto.
"Year 2000 problem" has the meaning specified in subsection
4.01(w).
(b) Amendment to subsection 2.04(a). The fifth line of subsection
2.04(a) is hereby amended to delete the word "average" and insert the word
"actual" in its stead.
(c) Amendments to Section 4.01.
(i) Section 4.01 is hereby amended to add the following
subsection (w):
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(w) Year 2000 Readiness Disclosure. The Borrower and its
Restricted Subsidiaries have developed and budgeted for a
comprehensive program that the Borrower believes addresses
adequately the "Year 2000 problem" (that is, the inability
of computers, as well as embedded microchips in
non-computing devices, to perform properly date-sensitive
functions with respect to certain dates prior to and after
December 31, 1999). Based upon such program and the
Borrower's review of the Year 2000 problem performed to
date, the Borrower believes that (1) the Borrower and its
Restricted Subsidiaries will substantially avoid the Year
2000 problem as to all computers, as well as embedded
microchips in non-computing devices, that are material to
the Borrower's and its Restricted Subsidiaries' business,
properties or operations taken as a whole and (2) the
failure of its (or its Restricted Subsidiaries') own or a
third party's systems or equipment due to the Year 2000
problem, including those of vendors, customers, and
suppliers, as well as a general failure of or interruption
in its communications and delivery infrastructure, will
not have a Material Adverse Effect.
(ii) Subsection 4.01(b)(ii) is hereby amended to read in
its entirety as follows:
(ii) Each Subsidiary of the Borrower (x) is duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and (y) has
all requisite power and authority (including, without
limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed
to be conducted.
(iii) Subsection 4.01(b)(iii) is hereby deleted.
(d) Amendment to subsection 5.02(d). Item (II) of subsection
5.02(d)(i)(D) of the Credit Agreement is hereby amended to read in its entirety
as follows:
(II) either (x) the maturity thereof is at least one year after
the Termination Date in effect at the time of the incurrence of
such Debt and any amortization thereof shall commence no earlier
than such Termination Date, or (y) such Debt is incurred pursuant
to the 364-Day Credit Agreement and the Loan Documents (as
defined in the 364-Day Credit Agreement) and
(e) Amendment to subsection 5.02(i). Item (A) of subsection
5.02(i)(i) of the Credit Agreement is hereby amended to read in its entirety as
follows:
(A) the prepayment of the Advances in accordance with the terms
of this Agreement or the prepayment of the "Advances" in
accordance with the terms of the 364-Day Credit Agreement,
(f) Amendments to Section 6.01.
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(i) Subsection 6.01(m) is hereby amended to add the word
"or" after the semicolon.
(ii) Section 6.01 is hereby amended to add the following
subsection (n):
(n) there shall occur any "Event of Default" as defined
in the 364-Day Credit Agreement;
3. Representations and Warranties. The Borrower hereby represents and warrants
to the Administrative Agent and each of the Lenders as follows:
(a) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any governmental
authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its respective
terms, without defense, counterclaim or offset.
(b) All representations and warranties of the Borrower contained
in the Credit Agreement are true and correct as though made on and as of the
date hereof (except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true and correct
as of such earlier date).
(c) The Borrower is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the Agents,
any Lender or any other person.
4. Effective Date. This Amendment will become effective as of March 4, 1999,
provided that each of the following has occurred:
(a) The Administrative Agent has received from the Borrower and
the Required Lenders a duly executed original or facsimile of this Amendment;
and
(b) All conditions precedent to the first Loan under the 364-Day
Credit Agreement (as defined in Section 2 above) other than the effectiveness of
this Amendment shall have occurred.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect, and all references therein and in the other Loan Documents to the Credit
Agreement shall henceforth refer to the Credit Agreement as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a part of, the
Credit Agreement.
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(b) This Amendment shall be binding upon and inure to the benefit
of the parties to the Credit Agreement and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of New York.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which, when taken
together, shall be deemed to constitute but one and the same instrument.
(e) This Amendment, together with the Credit Agreement, contains
the entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior drafts
and communications with respect thereto.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Borrower hereby covenants to pay or to reimburse the
Administrative Agent, upon demand, for all costs and expenses (including
Attorney Costs) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment in San Francisco, California as
of the date first above written.
XXXXXXXX XXXXXXXXXXXX
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
CITIBANK, N.A.
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL BRANCH
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
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XXX XXXX XX XXX XXXX
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
BANKBOSTON, N.A.
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
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BARCLAYS BANK PLC
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK
AKTIENGESELLSCHAFT, NEW YORK BRANCH
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
CIBC INC.
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
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FLEET NATIONAL BANK
By: /S/ SIGNATURE ILLEGIBLE
__________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
SAN FRANCISCO AGENCY
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /S/ SIGNATURE ILLEGIBLE
__________________________________
Name:
Title:
SANWA BANK CALIFORNIA
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
SOCIETE GENERALE, LOS ANGELES BRANCH
By: /S/ SIGNATURE ILLEGIBLE
_______________________________________
Name:
Title:
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ACKNOWLEDGED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative
Agent
By: /S/ SIGNATURE ILLEGIBLE
__________________________________
Name:
Title:
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