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EXHIBIT 4(c)
AMENDMENT NO. 1 dated as of December 1, 2000
(this "AMENDMENT"), to the AMENDED AND RESTATED
364-DAY CREDIT AGREEMENT dated as of December 31,
1999 (the "CREDIT AGREEMENT"), among THE
XXXXXXX-XXXXXXXX COMPANY (the "COMPANY"), the Lenders
referred to therein and THE CHASE MANHATTAN BANK, as
Administrative Agent and Competitive Advance Facility
Agent.
The Company has requested that certain terms of the Credit
Agreement be amended, and the Lenders are willing, on the terms and subject to
the conditions set forth herein, to agree to amend the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as set forth below.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Credit Agreement.
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. (a) The Credit
Agreement is hereby amended to add Citicorp USA, Inc. (the "NEW LENDER") as a
"Lender" under the Credit Agreement, with an initial Commitment of $10,000,000.
After giving effect to this Amendment, the Commitments of all Lenders (other
than the New Lender) will remain the same as before giving effect to this
Amendment, and each Lender's Commitment and percentage of the aggregate
Commitments will be as set forth on Schedule 1 hereto.
(b) Article X of the Credit Agreement is hereby amended by
inserting the following new section at the end thereof:
"SECTION 10.16. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Loans owing
to it (other than pursuant to Article III) in excess of its ratable share of
payments on account of the Revolving Credit Loans obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations
in the Revolving Credit Loans owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment (including any right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the Company
in the amount of such participation."
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SECTION 2. REPRESENTATIONS AND WARRANTIES. To induce the other
parties hereto to enter into this Amendment, the Company represents and warrants
to each of the Lenders and the Administrative Agent that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and each of this Amendment and the Credit
Agreement, after giving effect to this Amendment, constitutes the
legal, valid and binding obligation of the Company enforceable in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting the
enforcement of creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding
in equity or at law).
(b) The representations and warranties contained in Article IV
of the Credit Agreement, after giving effect to this Amendment, are
true and correct on and as of the date hereof, except to the extent
that such representations and warranties expressly relate to an earlier
date.
(c) No Possible Default or Event of Default has occurred and
is continuing or would result from the execution and delivery of this
Amendment.
SECTION 3. EFFECTIVENESS. This Amendment shall become
effective as of the date set forth above (the "AMENDMENT EFFECTIVE DATE") on the
date that the Administrative Agent or its counsel shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
the Company, the New Lender and the Lenders.
SECTION 4. LIMITED EFFECT OF AMENDMENT. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders or the Administrative Agent under the Credit Agreement, and shall
not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, which is
ratified and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle the Company to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. After the date hereof, any reference to the
Credit Agreement shall mean the Credit Agreement, as modified hereby.
SECTION 5. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same contract.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
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SECTION 7. HEADINGS. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
THE XXXXXXX-XXXXXXXX COMPANY,
by /s/
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Name:
Title:
by /s/
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually,
and as Administrative Agent and Competitive
Advance Facility Agent,
by /s/
--------------------------
Name:
Title:
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Citicorp USA, Inc. hereby agrees to each of the terms and conditions of the
Credit Agreement, a copy of which has been delivered by the Company to Citicorp
USA, Inc.
AMOUNT OF COMMITMENT: CITICORP USA, INC.,
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$10,000,000.00
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: BANK ONE, NA
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: THE BANK OF NEW YORK
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: WACHOVIA BANK OF GEORGIA, N.A.
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: MELLON BANK, N.A.
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: FIFTH THIRD BANK
by /s/
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Name:
Title:
11
SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: SUNTRUST BANK
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: ABN AMRO BANK N.V.
by /s/
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Name:
Title:
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: THE BANK OF NOVA SCOTIA
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: BANCA COMMERCIALE ITALIANA
CHICAGO BRANCH
by /s/
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Name:
Title:
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: FLEET NATIONAL BANK
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: NATIONAL CITY BANK
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: BANK OF AMERICA, N.A.
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: FIRST UNION NATIONAL BANK
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: KEYBANK NATIONAL ASSOCIATION
by /s/
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Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 DATED AS
OF DECEMBER 1, 2000, TO THE XXXXXXX-XXXXXXXX
COMPANY AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT DATED AS OF DECEMBER 31, 1999
NAME OF INSTITUTION: XXXXX FARGO BANK, NATIONAL ASSOCIATION
by /s/
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Name:
Title:
by /s/
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Name:
Title:
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364-Day Credit Agreement
Schedule 1
LENDER PERCENTAGE OF COMMITMENTS COMMITMENT
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The Chase Manhattan Bank 7.72% $10,000,000
ABN AMRO Bank N.V. 7.72% $10,000,000
National City Bank 7.72% $10,000,000
Xxxxx Fargo Bank, N.A. 7.72% $10,000,000
Wachovia Bank of Georgia, N.A. 5.86% $7,600,000
SunTrust Bank, Atlanta 7.72% $10,000,000
Banca Commerciale Italiana Chicago Branch 3.70% $4,800,000
The Bank of New York 7.72% $10,000,000
Bank One, N.A. 7.72% $10,000,000
The Bank of Nova Scotia 3.70% $4,800,000
Bank of America 7.72% $10,000,000
First Union National Bank 7.72% $10,000,000
Mellon Bank, N.A. 5.86% $7,600,000
Fifth Third Bank 3.70% $4,800,000
Citicorp USA, Inc. 7.72% $10,000,000
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Total 100.00% $129,600,000
