AMENDMENT NO.1
TO
1997 AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO 1997 AMENDED AND RESTATED CREDIT
AGREEMENT is dated as of January 19, 1998, and is by and among
GATEWAY 2000, INC., a Delaware corporation (the "Company"); the
several financial institutions from time to time party to the
1997 Amended and Restated Credit Agreement entered into as of
September 25, 1997 including those executing this Amendment as a
Bank (collectively, the "Banks" and individually, a "Bank");
Norwest Bank Iowa, National Association, as Issuing Bank and
Administrative Agent; and Bank of America National Trust and
Savings Association, as Documentation Agent for the Banks.
RECITALS:
The parties hereto entered into a 1997 Amended and Restated
Credit Agreement, dated as of September 25, 1997 (as amended, the
"Credit Agreement") and desire to amend the Credit Agreement to
modify the L/C Commitment established thereunder as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the above premises and
other good and valuable consideration, the sum and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendment to Credit Agreement. The definition of "L/C
Commitment" set forth in Section 1.01 of the Credit Agreement is
amended to read as follows:
"L/C Commitment" means the commitment of the Issuing
Bank to issue, and the commitment of the Banks
severally to participate in, Letters of Credit
(including the Existing Norwest Letters of Credit)
from time to time Issued or outstanding under Article
III, in an aggregate amount not to exceed on any date
the amount of $75,000,000, as the same shall be
reduced as a result of a reduction in the L/C
Commitment pursuant to Section 2.07; provided that the
LIC Commitment is a part of the combined Commitments,
rather than a separate, independent commitment.
2. References to Agreement Each reference in any Loan
Document to "Agreement" or "Credit Agreement" shall mean the
Credit Agreement as amended by this Amendment.
3. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Banks
as follows:
(a) It has the power and authority to execute and perform
this Amendment and each other agreement, document,
instrument, amendment and modification required to be
executed by it in connection with this Amendment.
(b) The execution and delivery of this Amendment and each
other agreement, document, instrument, amendment and
modification required to be executed by it in connection
with this Amendment, have been duly authorized by all
required corporate action.
(c) This Amendment and each other agreement, document,
instrument, amendment and modification required to be
executed by it in connection with this Amendment, constitute
the valid and binding obligations of the Company enforceable
against the Company in accordance with the terms hereof
(d) No Default or Event of Default has occurred and is
continuing.
(e) All the representations and warranties of the Company
contained in the Credit Agreement are true and correct on
and as of the date hereof as though made on and as of such
date, except to the extent such representations and
warranties relate solely to an earlier date.
(f) The Company is entering into this Amendment on the
basis of its own investigation and for its reasons, without
reliance upon the Administrative Agent, the Documentation
Agent, any Bank or any other Person.
4. Loan Documents. The company reaffirms its obligations
under the Credit Agreement, as amended hereby, under each
outstanding Note evidencing the Loans extended by the Banks under
the Credit Agreement, as amended hereby, and under each Loan
Document.
5. Conditions Precedent; Effective Date.
(a) This Amendment shall become effective as of February 6,
1998 (the "Effective Date"), provided that each of the
following conditions precedent is satisfied on or before
such date:
(i) The Documentation Agent shall have received:
(A) A certificate of the Secretary of the Company
certifying (I) that the officer or officers of the Company
executing this Amendment on behalf of the Company are each
an "Authorized Officer" of the Company under the Resolution
of the Company adopted by the Board of Directors of the
Company on December 13, 1995 in connection with the Credit
Agreement, dated as of December 27, 1995 (the "Authorizing
Resolution"), and as such each is authorized to execute and
deliver this Amendment on behalf of the Company, (II) that
the Authorizing Resolution is still in force and effect and
has not been modified or rescinded, (III) the names and true
signatures of the officer or officers executing this
Amendment on behalf of the Company and (IV) no Default or
Event of Default has occurred and is continuing as of the
date of the Secretary's certification.
(B) From the Company, each Bank, the Documentation
Agent, the Administrative Agent and the Issuing Bank, an
execution original (or, if elected by the Documentation
Agent, an executed facsimile copy) of this Amendment, duly
executed by all the parties hereto.
(C) Such other agreements, documents, instruments,
amendments, modifications, opinions and certificates as the
Bank may reasonably request with respect to the matters set
forth herein, all of which shall be in form and substance
satisfactory to the Documentation Agent.
(b) From and alter the Effective Date, the Credit Agreement
is amended as set forth herein.
6. Miscellaneous.
(a) All capitalized terms used and not otherwise defined
herein shall have the same meaning herein as in the Credit
Agreement.
(b) This Amendment may be executed in any number of
counterparts or on telecopy counterparts, each of which
shall be an original and all of which shall constitute one
agreement and it shall not be necessary in making proof of
this Amendment to produce or account for more than one
counterpart.
(c) This Amendment and each of the other agreements,
documents, instruments, amendments and modifications to be
executed by the Company in connection with this Amendment
shall be governed by and construed in accordance with the
law of the State of New York.
(d) All expenses and costs reasonably incurred by the
Administrative Agent or the Documentation Agent with respect
to the preparation, review, negotiation and administration
of this Amendment (including compensation of all attorneys
employed by the Administrative Agent or the Documentation
Agent, including the allocated costs of in-house counsel)
shall be repaid to the Administrative Agent or the
Documentation Agent by the Company on demand.
(e) The Credit Agreement, as amended hereby, shall be
binding upon and inure to the benefit of the parties hereto
and thereto and their respective successors and assigns.
(f) Each Bank executing this Amendment consents to,
concurs, approves, accepts, and is satisfied with, this
Amendment, the Credit Agreement, as amended hereby, and each
document or other written material sent by the
Administrative Agent or the Documentation Agent to such Bank
for consent, concurrence, approval, execution, acceptance or
satisfaction.
(g) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but
such counterparts together shall constitute but one and the
same instrument. Each of the parties hereto understands and
agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by
facsimile transmission to be followed promptly by mailing of
a hard copy original, and that receipt by the Administrative
Agent or the Documentation Agent of a facsimile transmitted
document purportedly bearing the signature of a Bank or of
the Company shall bind such Bank or the Company,
respectively, with the same force and effect as the delivery
of a hard copy executed original. Any failure by the
Administrative Agent or the Documentation Agent to receive
the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile
transmitted executed original of such document of the party
whose hard copy page was not received by the Administrative
Agent or the Documentation Agent.
(h) This Amendment, the Credit Agreement, as amended
hereby, and the other Loan Documents are the result of
negotiations among the parties, have been reviewed by
counsel to the parties and are the product of the parties.
Neither BofA, as Documentation Agent, nor Norwest, as
Issuing Bank or Administrative Agent, shall have any right,
power, obligation, liability, responsibility or duty under
this Amendment, the Credit Agreement, as amended hereby, or
any other Loan Document other than those applicable to all
Banks as such. Without limiting the foregoing, BofA shall
not have or be deemed to have any fiduciary relationship
with the Administrative Agent or any Bank and Norwest shall
not have or be deemed to have any fiduciary relationship
with the Documentation Agent or any Bank. Each Bank
acknowledges that it has not relied, and will not rely, on
BofA or Norwest in deciding to enter into this Amendment or
in taking or not taking action hereunder, the Credit
Agreement, as amended hereby, or any other Loan Document.
7. Acknowledgment. The Company hereby acknowledges
receipt of a copy of this Amendment and each other agreement,
document, instrument and modification at any time executed by a
debtor in connection with this Amendment, the Credit Agreement or
the Indebtedness to the Banks under the Credit Agreement.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF
THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE
ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY
CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers,
all as of the day and year first above written.
GATEWAY 2000, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior VP and Chief
Financial Officer
NORWEST BANK IOWA, NATIONAL
ASSOCIATION,as
Administrative Agent
Issuing Bank and a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent and a Bank
By:______________________________
Name:_________________________
Title:________________________
THE BANK OF NOVA SCOTIA
By:______________________________
Name:_________________________
Title:________________________
IMPORTANT: READ BEFORE SIGNING. THE TERMS
OF THIS AGREEMENT SHOULD BE READ CAREFULLY
BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY
ENFORCED. YOU MAY CHANGE THE TERMS OF THIS
AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers, all as of
the day and year first above written.
GATEWAY 2000, INC.
By:_____________________________________
Name:______________________________
Title:_____________________________
NORWEST BANK IOWA, NATIONAL
ASSOCIATION, as Administrative Agent
Issuing Bank and a Bank
By:_____________________________________
Name:______________________________
Title:_____________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Documentation
Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ McMahon_
Title: Managing Director
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:______________________________
Title:_____________________________
