EXHIBIT 10(n)
FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT is entered
into as of September 25, 1996, by and among Electronic Data Systems Corporation,
a Delaware corporation ("EDS") and successor by merger to Electronic Data
Systems Corporation, a Texas corporation, the financial institutions listed on
the signature pages of this Amendment under the heading "LENDERS," including
BANCO SANTANDER - NEW YORK BRANCH, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, THE CHASE MANHATTAN BANK, CITIBANK, N.A., XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, and NATIONSBANK OF TEXAS, N.A., as Arrangers, and CITIBANK,
N.A. as Administrative Agent for such Lenders to the extent and in the manner
provided in the Credit Agreement (as defined below). All capitalized terms used
in this Amendment and not defined, have the meaning given to such terms in the
Credit Agreement.
EDS, Administrative Agent, and certain Lenders entered into that certain
Revolving Credit and Term Loan Agreement as of October 4, 1995 (the "CREDIT
AGREEMENT"). EDS desires to amend the Credit Agreement to effect the amendments
reflected herein, and the Administrative Agent and Lenders are willing to agree
to such amendments.
EDS is a successor by merger to Electronic Data Systems Corporation, a Texas
corporation, and the parties to the Credit Agreement wish to reflect that EDS is
a Delaware corporation in the Credit Agreement and related documentation.
Accordingly, in consideration of the mutual promises herein contained, and
for other good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
a. DEFINITIONS.
i. The definition of "Applicable Margin" is hereby amended in its
entirety to read as follows:
"'APPLICABLE MARGIN," with respect to the calculation of the CD Rate
or the Eurodollar Rate, means the applicable percentage amount set
forth in the table below:
Committed Loans:
Eurodollar Loans 0.155%
CD Loans 0.280%
Term Loans:
Eurodollar Loans 0.155%
CD Loans 0.280%"
ii. The definition of "Availability Date" is hereby amended to mean
the later of (a) the date when sufficient Lenders have executed the First
Amendment so that the Aggregate
Committed Sum is equal to or greater than $1,250,000,000, or (b) the date when
all of the conditions precedent set forth in SECTION 2 to the First Amendment
have been satisfied in full or waived.
iii. The definition of "EDS" is hereby amended in its entirety to read
as follows:
"'EDS' means Electronic Data Systems Corporation a Delaware
corporation, successor by merger to Electronic Data Systems
Corporation, a Texas corporation."
b. FEES. Section 4.1 (Facility Fees) of the Credit Agreement is hereby
amended to replace the number and words "0.05 percent per annum" in the first
sentence thereof with the number and words "0.045 percent per annum."
c. REPRESENTATIONS AND WARRANTIES. Section 6.1(d) (Financial Statements)
of the Credit Agreement is hereby amended to replace the date "December 31,
1994" at the end of the first sentence thereof with the date "December 31,
1995."
d. COVENANTS.
i. Sections 7.3(a) and (b) (Items to be Furnished; Annual Financial
Statements and Quarterly Financial Statements) of the Credit Agreement are each
hereby amended to delete the words "or the" after the word "Treasurer" in each
such subsection and to replace them with a comma "," and to add the words "or
the Corporate Vice President - Finance" after the words "Chief Financial
Officer" in each such subsection.
ii. Section 7.3(c) (SEC Filings) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(c) SEC Filings. Promptly upon transmission thereof, copies of
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all financial statements, proxy statements, notices and reports as EDS
shall send to its public stockholders generally and copies of all
registration statements (without exhibits) and all reports which EDS
files with the Securities and Exchange Commission (or any governmental
body or agency succeeding to the functions of the Securities and
Exchange Commission), but excluding any filings relating to shelf
registrations or Debt issuances."
iii. Section 7.8 (Net Worth) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"7.8 NET WORTH. EDS covenants and agrees that, at all times, the
Net Worth of EDS and its consolidated Subsidiaries shall exceed the
sum of (a) $3,273,800,000, plus (b) fifty percent (50%) of the Net
Income of EDS and its consolidated Subsidiaries for each fiscal
quarter commencing after June 30, 1996."
e. NOTICES. Section 11.4 of the Credit Agreement is hereby amended to
change the "Telephone No." and the "Telecopy No." under the heading "Borrowers"
to:
"Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000"
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to amend the "Telephone No." and the "Telecopy No." for Borrower's General
Counsel to:
"Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000"
and to amend the address and contact for notices under Articles II and III and
under Section 4.2 for the Administrative Agent to:
"Citibank, N.A.
Investor Loan Services
Xxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxx
Telecopy No.: 000-000-0000/45
Telephone No.: 000-000-0000"
f. DESIGNATION OF EDS AFFILIATES AS BORROWERS. Section 11.18 of the
Credit Agreement is hereby amended to delete the word "or" after the words
"Assistant Treasurer" and to replace it with a comma "," and to add the words
"or the Corporate Vice President - Finance" after the words "Chief Financial
Officer" in such Section.
2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to
Administrative Agent's receipt of the following:
a. NOTES. New Committed Loan Notes, executed by EDS, each
substantially in the form of EXHIBIT A-1 to the Credit Agreement, attached
hereto.
b. ARTICLES OF INCORPORATION. A recent copy of the articles or
certificate of incorporation and all amendments thereto, of EDS, certified by
the Secretary of State of Delaware.
c. GOOD STANDING AND EXISTENCE. A recent certificate of existence and
good standing of EDS from the Secretary of State of Delaware.
d. OFFICER'S CERTIFICATE. An Officer's Certificate of EDS certifying
as to (i) bylaws, (ii) resolutions, and (iii) incumbency of all officers of EDS
who will be authorized to execute or attest to any Loan Document.
e. OPINION OF COUNSEL. An opinion of counsel to EDS, including,
without limitation, an opinion as to the enforceability under New York law of
this Amendment and any documents delivered in connection herewith, which opinion
may be delivered by separate counsel.
3. REPRESENTATIONS AND WARRANTIES. To induce Lenders to enter into this
Amendment, EDS represents and warrants to Lenders as follows:
a. CORPORATE EXISTENCE AND AUTHORITY. EDS (i) is duly organized,
validly existing, and in good standing under the Laws of the State of Delaware,
(ii) is duly qualified to transact business and is in good standing in each
jurisdiction where the failure to do so would have a Material Adverse Effect,
and (iii) has all requisite power and authority (A) to own its assets and to
carry on its business, and (B) to execute, deliver, and perform its obligations
under this Amendment.
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b. BINDING OBLIGATIONS. The execution and delivery of this Amendment
has been duly authorized and approved by all necessary corporate action on the
part of EDS, and this Amendment constitutes the legal, valid, and binding
obligation of EDS, enforceable against it in accordance with its terms, except
as the enforceability may be limited by applicable Debtor Relief Laws.
c. FINANCIAL STATEMENTS. EDS has delivered to Administrative Agent a
copy of the Financial Statements as of the period ended December 31, 1995. Such
Financial Statements were prepared in accordance with GAAP and present fairly
the financial condition and the results of operations of EDS and its
consolidated Subsidiaries as of, and for the portion of the fiscal year ending
on, the date or dates thereof. All material liabilities (direct or indirect,
fixed or contingent) of EDS and its consolidated Subsidiaries as of the date or
dates of such Financial Statements are reflected therein or in the notes
thereto. Between the date or dates of such Financial Statements and the date of
this Amendment, there has been no material adverse change in the financial
condition of EDS and its consolidated Subsidiaries.
d. LITIGATION. Except for the Litigation described on Schedule 6.1 to
the Credit Agreement, EDS and its Subsidiaries are not involved in, nor, to the
best of EDS's knowledge, are they aware of, any Litigation which could,
collectively or individually, have a Material Adverse Effect, if determined
adversely to EDS and its Subsidiaries, nor are there any outstanding or unpaid
judgments against EDS or its Subsidiaries in excess of $25,000,000 (calculated,
in the case of judgments denominated in currencies other than Dollars, by
reference to the Dollar Equivalent Value of the amount of such judgment in such
other currency), in the aggregate.
e. OTHER REPRESENTATIONS. All representations and warranties set
forth in Article VI of the Credit Agreement, to the extent applicable to EDS
(other than those contained in Sections 6.1(d) and (e)), and in Article III of
the Guaranty, are true and correct in all material respects on and as of the
date hereof, except for such changes therein otherwise permitted by the terms of
the Credit Agreement or the Guaranty or permitted or waived by Majority Lenders.
4. MISCELLANEOUS.
a. NO OTHER AMENDMENTS. Except as expressly amended herein, the terms
of the Credit Agreement shall remain in full force and effect.
b. AMENDMENT AS LOAN DOCUMENT. This Amendment shall constitute a Loan
Document under the Credit Agreement.
c. LIMITATION ON AGREEMENTS. The amendments set forth herein are
limited precisely as written and shall not be deemed (i) to be a consent under
or waiver of any other term or condition in the Credit Agreement or any of the
other Loan Documents, or (ii) to prejudice any right or rights which
Administrative Agent and Lenders now have or may have in the future under, or in
connection with the Credit Agreement, as amended hereby, the Notes, the Loan
Documents or any of the other documents referred to herein or therein. From and
after the date of this Amendment, all references in the Loan Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement after
giving effect to this Amendment, and each reference to "hereof," "hereunder,"
"herein" or "hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in the Credit
Agreement shall from and after the date hereof refer to the Credit Agreement as
amended hereby.
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d. EXHIBITS. All references in the Credit Agreement to Exhibit A-1
shall hereafter be deemed to be references to EXHIBIT A-1 attached hereto.
e. SCHEDULE 1. All Lenders and Committed Sums evidenced on SCHEDULE 1
attached hereto hereby replace those Lenders and Committed Sums on the previous
Schedule 1 attached to the Credit Agreement.
f. SCHEDULE 2. All Designated EDS Affiliates evidenced on SCHEDULE 2
attached hereto hereby replace those Designated EDS Affiliates on the previous
Schedule 2 attached to the Credit Agreement.
g. NOTICE UNDER GUARANTY. In addition to the amendment made to
Section 11.4 hereby, EDS' telecopy number for notice is amended for purposes of
the Guaranty, to be "(000) 000-0000."
h. TERMINATING LENDERS. Those Persons that executed the Credit
Agreement as Lenders, but that are not signatories to this Amendment, are no
longer Lenders under the Credit Agreement, as amended hereby.
i. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
j. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (OTHER
THAN THE CONFLICT OF LAWS PROVISIONS THEREOF), EXCEPT TO THE EXTENT THAT FEDERAL
LAWS MAY APPLY.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE(S) FOLLOW.
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EXECUTED as of the day and year first above written.
BORROWER:
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/Xxxxxx X. Xxxxx
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Title: SSU Director and Assistant Treasurer
ADMINISTRATIVE AGENT:
CITIBANK, N.A., in its individual capacity as a Lender,
and as Administrative Agent
By: /s/Xxxxxx X. Xxxxxx
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Title: Vice President
ARRANGERS/LENDERS:
/s/
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MANAGERS/LENDERS:
/s/
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LENDERS:
/s/
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