Exhibit 99.1
Amendment No. 6 to Receivables
Purchase Agreement
This AMENDMENT NO. 6 TO RECEIVABLES
PURCHASE AGREEMENT, dated as of November 24, 2004 (this “
Amendment Agreement ”), is made by and among Legacy
Receivables LLC (the “ Seller ”), CAFCO, LLC
(“ CAFCO ”), CIESCO, LLC (“ CIESCO
”), Citibank, N.A. (“ Citibank ”),
Citicorp North America, Inc., as agent (the “ Agent
”) for the Investors and the Banks (each as defined in the
Agreement referred to below), Electronic Data Systems Corporation
(“ EDS ”), and EDS Information Services L.L.C.
(the “ Originator ”).
Preliminary Statements
. (1) The Seller, CAFCO, CIESCO,
Citibank, the Agent, EDS and the Originator are parties to a
Receivables Purchase Agreement, dated as of December 27, 2002, as
amended as of January 1, 2003, as of June 30, 2003, as of December
26, 2003, as of March 5, 2004 and as of April 5, 2004 (the “
Agreement ”; capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them
in the Agreement).
(2) The Seller, CAFCO, CIESCO,
Citibank, the Agent, EDS and the Originator have agreed to further
amend the Agreement.
NOW, THEREFORE, the parties agree as
follows:
SECTION 1.
Amendments to Section 1.01 of the
Agreement . Upon effectiveness of this Amendment Agreement in
accordance with Section 3, Section 1.01 of the Agreement is amended
as follows:
(a) The definition of
“Commitment Termination Date” is amended by deleting
the date December 24, 2004 in clause (a) thereof and substituting
therefor the date December 23, 2005.
(b) The definition of
“Consolidated EBITDA” is amended in its entirety to
read as follows:
“‘ Consolidated
EBITDA ’ means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent
deducted in determining such Consolidated Net Income, the sum of
(i) Consolidated Interest Expense for such period, (ii)
consolidated income tax expense for such period, (iii) all amounts
attributable to depreciation, amortization and deferred cost
charges for such period (including any accelerated deferred cost
charges taken in such period), (iv) any extraordinary non-cash
charges for such period recognized in accordance with GAAP, (v) any
nonrecurring expenses or charges for such period (not to exceed
$300,000,000 in the aggregate from and after September 29, 2004),
(vi) any non-cash nonrecurring expense relating to the transfer of
pension liability to certain persons in connection with the
termination of the services contract between an EDS Subsidiary and
the United Kingdom Government’s Inland Revenue Department for
such period, (vii) all cash and non-cash charges relating to
investments in aircraft leases for such period (not to exceed
$150,000,000 in the aggregate from and after September 29, 2004),
(viii) any non-cash compensation arising from any grant of stock
options or other equity based awards and (ix) any losses recognized
in such period from any marking to market of any Swap Agreement
minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, (i) any extraordinary
gains for such period and (ii) any gains recognized in such period
from any marking to market of any Swap Agreement, all determined on
a consolidated basis in accordance with GAAP. For purposes of
calculating Consolidated EBITDA for any period (each, a ‘
Reference Period ’) in connection with a determination
of the Leverage Ratio for such period, if during such Reference
Period (or, in the case of pro forma calculations,
during the period from the last day of such Reference Period to and
including the date as of which such calculation is made) EDS or any
EDS Subsidiary shall have made a Material Disposition or Material
Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto as
if such Material Disposition or Material Acquisition occurred on
the first day of such Reference Period (with the Reference Period
for the purposes of pro forma calculations being the
most recent period of four consecutive fiscal quarters for which
the relevant financial information is available), provided
that such pro forma
calculations for a Material
Acquisition or Material Disposition shall not give effect to
operating expense reductions and other cost savings other than
operating expense reductions and other cost savings actually
realized in connection with such Material Acquisition or Material
Disposition. As used in this definition, ‘ Material
Acquisition ’ means any acquisition or series of related
acquisitions that involves consideration (including any non-cash
consideration) with a fair market value in excess of $100,000,000;
and ‘ Material Disposition ’ means any
disposition of property or series of related dispositions of
property that involves consideration (including any non-cash
consideration) with a fair market value in excess of
$100,000,000.”
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(c)
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The definition
of “Equity Interests” is amended in its entirety to
read as follows:
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“‘ Equity
Interests ’ means shares of capital stock, partnership
interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests
in a Person, and any warrants, options or other rights issued by
such Person entitling the holder thereof to purchase or acquire any
such equity interest.”
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(d)
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The definition
of “FELINE PRIDES” is deleted in its
entirety.
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(e)
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The definition
of “GAAP” is amended in its entirety to read as
follows:
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“‘ GAAP ’
means all applicable generally accepted accounting principles of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and the Financial Accounting Standards
Board which are applicable as of the date or for the period in
question.”
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(f)
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The definition
of “Guarantee” is amended in its entirety to read as
follows:
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“‘ Guarantee
’ of or by any Person (the ‘ guarantor ’)
means any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other financial obligation of any other Person (the
‘ primary obligor ’) in any manner, whether
directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit (except, in the case of performance
letters of credit, to the extent no drawings have been made
thereunder) or bank guaranties (except, in the case of bank
guaranties of performance, to the extent no drawings have been made
thereunder) issued to support such Indebtedness or obligation,
provided , that the term “Guarantee” shall not
include (x) endorsements for collection or deposit in the ordinary
course of business and (y) guarantees by a guarantor of obligations
of any EDS Subsidiary directly or indirectly wholly owned by EDS
arising pursuant to operating leases (other than Synthetic Leases)
of such EDS Subsidiary.”
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(g)
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The definition
of “Indebtedness” is amended in its entirety to read as
follows:
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“‘ Indebtedness
’ of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, other than payments of amounts
made to such Person under the terms of any customer contract
(entered into in the ordinary course) made in prepayment for
services to be rendered under
