FIRST AMENDMENT
EXECUTION
COPY
FIRST
AMENDMENT
FIRST
AMENDMENT, dated as of May 5, 2005 (this “Amendment”), to
the FIVE-YEAR REVOLVING CREDIT AGREEMENT, dated as of May 12, 2004 (as
amended, supplemented or otherwise modified, the “Credit
Agreement”), among
CSX CORPORATION, a Virginia corporation, as Borrower, the LENDERS parties
thereto, CITIBANK, N.A. and THE BANK OF NOVA SCOTIA, as Co-Syndication
Agents, CREDIT SUISSE FIRST BOSTON and MIZUHO CORPORATE BANK, LTD., as
Co-Documentation Agents, and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMORGAN CHASE BANK), as Administrative Agent.
W I T N E S S E T H:
WHEREAS,
pursuant to the Credit Agreement, the Lenders have agreed to make certain loans
and other extensions of credit to the Borrower; and
WHEREAS,
the Borrower has requested and, upon this Amendment becoming effective, the
Lenders have agreed, to amend certain provisions of the Credit Agreement upon
the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein, the parties hereto agree as follows:
SECTION
1. DEFINITIONS
1.1 Defined
Terms. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given such terms in the Credit Agreement.
SECTION
2. AMENDMENTS
TO CREDIT AGREEMENT
2.1 Amendments
to Section 1.01.
Section 1.01 of the Credit Agreement is hereby amended by
(a) replacing the reference to the amount “$75,000,000” appearing in the
definition of Material Indebtedness in such Section with a reference to
“$80,000,000”, (b) by replacing the reference to the date
“May 12, 2004” appearing in the definition of 364-Day Credit Agreement
in such Section with a reference to “May 5, 2005” and (c) by
adding the following parenthetical at the end of the definition of 364-Day
Credit Agreement in such section “(and any replacement thereof)”.
2.2 Amendment
to Section 2.08(b).
Section 2.08(b) of the Credit Agreement is hereby amended by replacing the
first sentence thereof with the following sentence:
“Upon any
direct or indirect sale or other disposition of Shares (other than Shares
constituting Unrestricted Margin Stock) directly or indirectly beneficially
owned by the Borrower (other than (i) to the Borrower’s direct or indirect
Subsidiaries, (ii) to any wholly-owned subsidiary of CSX/NS Acquisition Sub
so long as the Borrower’s direct or indirect proportionate beneficial ownership
of the Shares
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shall not
be reduced as a result thereof, or (iii) to NS or its subsidiaries or any
CSX/NS Acquisition Sub Entity in consideration of the acquisition of any assets
of Conrail or any of its subsidiaries by the Borrower or any Subsidiary), the
Commitments and the Commitments (as defined in the 364-Day Credit Agreement)
shall be automatically reduced, on a ratable basis, in an aggregate amount equal
to 100% of the Net Cash Proceeds to the Borrower and the Subsidiaries of any
such sale or other disposition of Shares (other than Shares constituting
Unrestricted Margin Stock).”
2.3 Amendment
to Article VII(i). Article
VII(i) of the Credit Agreement is hereby amended by replacing the reference to
the amount “$75,000,000” appearing therein with a reference to
“$80,000,000.”
2.4 Amendment
to Section 9.02(b). Clause
(iv) of the first proviso to Section 9.02(b) of the Credit Agreement is hereby
amended by changing the reference to “Section 2.10(c)” to refer to “Section
2.08(d)” instead.
2.5 Amendment
to Section 9.04(b). Clause
(ii) of Section 9.04(b) of the Credit Agreement is hereby amended by adding
the following at the beginning of such clause “except in the case of an
assignment to a Lender,”.
SECTION
3. MISCELLANEOUS
3.1 Limited
Effect. Except
as expressly amended, modified and supplemented hereby, the Credit Agreement is,
and shall remain, in full force and effect in accordance with its
terms.
3.2 Effectiveness. This
Amendment shall become effective as of the date hereof upon receipt by the
Administrative Agent of a counterpart hereof duly executed by the Borrower and
the Majority Lenders on or prior to 5:00 p.m., New York City time, on
May 5, 2005 (except that the amendment in Section 2.4 shall not become
effective until this Amendment has been duly executed by the Borrower and each
Lender).
3.3 Representations
and Warranties. On and
as of the date hereof and after giving effect to this Amendment, the Borrower
hereby confirms, reaffirms and restates 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 hereby confirms, reaffirms and
restates such representations and warranties as of such earlier
date.
3.4 Counterparts. This
Amendment may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with the Borrower and the
Administrative Agent. This Amendment may be delivered by facsimile transmission
of the relevant signature pages hereof.
3.5 GOVERNING
LAW. THIS
AMENDMENT AND THE RIGHTS AND
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OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
| CSX CORPORATION, | ||
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as
Borrower |
| By: | ||
|
Title: | ||
| JPMORGAN CHASE BANK, N.A., | ||
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as Administrative
Agent and as a Lender, |
| By: | ||
|
Title: | ||
| CITIBANK, N.A. | ||
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| By: | ||
|
Title: | ||
| THE BANK OF NOVA SCOTIA | ||
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| By: | ||
|
Title: | ||
| CREDIT SUISSE FIRST BOSTON | ||
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| By: | ||
|
Title: | ||
| By: | ||
|
Title: | ||
| MIZUHO CORPORATE BANK, LTD. | ||
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| By: | ||
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Title: | ||
| BARCLAYS BANK PLC | ||
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| By: | ||
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Title: | ||
| BANK OF TOKYO-MITSUBISHI TRUST COMPANY | ||
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| By: | ||
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Title: | ||
| XXXXXX XXXXXXX BANK | ||
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| By: | ||
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Title: | ||
| UBS AG, Stamford Branch | ||
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| By: | ||
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Title: | ||
| By: | ||
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Title: | ||
| PNC BANK, NATIONAL ASSOCIATION | ||
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| By: | ||
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Title: | ||
| SUNTRUST BANK | ||
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| By: | ||
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Title: | ||
| BANK OF AMERICA N.A. | ||
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| By: | ||
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Title: | ||
| BANK OF NEW YORK | ||
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| By: | ||
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Title: | ||
| ABN AMRO BANK N.V. | ||
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| By: | ||
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Title: | ||
| THE NORTHERN TRUST COMPANY | ||
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| By: | ||
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Title: | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||
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| By: | ||
|
Title: | ||
| THE FIFTH THIRD BANK | ||
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| By: | ||
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Title: | ||
