EXHIBIT 4(f)
[XX XXXXXX LOGO APPEARS HERE]
FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT
dated as of
October 23, 2001
among
XXXXXX XXXXXX, INC.
The Banks Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
FIRST UNION NATIONAL BANK,
as Syndication Agent
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
THE BANK OF NOVA SCOTIA,
CREDIT LYONNAIS
as Co-Documentation Agents
X.X. XXXXXX SECURITIES, INC.,
FIRST UNION SECURITIES, INC.
as Joint Book Runners/Co-Lead Arrangers
FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT ("First Amendment") is
dated as of October 23, 2001 by and among XXXXXX XXXXXX, INC., a Kansas
corporation (the "Borrower"), THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as Administrative Agent, FIRST UNION NATIONAL BANK, a
national banking association ("First Union"), as Syndication Agent and the Banks
party hereto and shall amend the 364-DAY CREDIT AGREEMENT (the "Credit
Agreement"), dated as of October 25, 2000 among the Borrower, Bank One, N.A., as
Documentation Agent, First Union, as Syndication Agent, Bank of America, N.A.,
as Administrative Agent, and the Banks party thereto.
WHEREAS, the Borrower desires to extend the term of the Credit
Agreement;
WHEREAS, Chase has succeeded Bank of America, N.A. as Administrative
Agent under the Credit Agreement;
WHEREAS, Bank One N.A. has ceased to be the Documentation Agent and
Bank of Nova Scotia, Commerzbank AG, New York and Grand Cayman Branches, and
Credit Lyonnais have replaced Bank One, N.A. as Co-Documentation Agents;
WHEREAS, Bank of America, N.A. and The Sumitomo Bank, Limited have
elected not to renew their Commitments and, therefore, have ceased to be Banks
under the Credit Agreement;
WHEREAS, by their execution of this First Amendment, certain new banks
have agreed to become Banks under the Credit Agreement;
WHEREAS, the Borrower desires to correct and clarify certain other
matters related to the Credit Agreement;
WHEREAS, the Borrower has requested that the Banks modify and amend the
Credit Agreement as described more fully herein;
WHEREAS, the Banks are willing to agree to the amendments being
requested by the Borrower, but only on the terms and subject to the conditions
set forth in this First Amendment; and
WHEREAS, each of the signatories hereto is a party to the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Administrative Agent, the Banks, and each of the
other signatories hereto hereby agree as follows:
SECTION 1. Terms Defined in the Credit Agreement. Each term defined in
the Credit Agreement (as amended hereby) and not otherwise defined herein shall
have the meaning assigned to such term in the Credit Agreement. Unless otherwise
indicated, all section and article references in this First Amendment refer to
the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement.
(a) Amendment to the Definitions Section.
(i) Section 1.01 of the Credit Agreement is hereby
amended by amending and restating in their entirety the
following definitions:
"ADMINISTRATIVE AGENT" means The Chase Manhattan
Bank, in its capacity as administrative agent for the Banks under this
Agreement, and its successor in such capacity.
"BANK" means each bank listed on the signature pages
of the First Amendment, each Assignee which becomes a Bank pursuant to SECTION
9.06(c), and their respective successors.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's
quarterly report on Form 10-Q for the quarter ended June 30, 2001 as filed with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934.
"DOCUMENTATION AGENT" means, collectively, the
Co-Documentation Agents.
"REQUIRED BANKS" means at any time the Banks having
at least 51% of the aggregate amount of the Commitments or, if the Commitments
shall have been terminated, holding Loans evidencing at least 51% of the
aggregate unpaid principal amount of the Loans.
"REVOLVING TERMINATION DATE" means the earlier of (i)
October 22, 2002 (or such later date to which the Revolving Termination Date may
be extended pursuant to Section 2.16 hereof) or (ii) the effective date of any
other termination, cancellation, or acceleration of all commitments to lend
hereunder.
(ii) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "Borrower's 1999 Form 10-K" and replacing it with the
following definition:
"BORROWER'S 2000 FORM 10-K" means the Borrower's
annual report on Form 10-K for 2000, as filed with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
(iii) Section 1.01 of the Credit Agreement is hereby amended
by adding the following definitions in their proper alphabetical order:
"CO-DOCUMENTATION AGENTS" means Commerzbank AG, New
York and Grand Cayman Branches, The Bank of Nova Scotia, and Credit Lyonnais."
"FIRST AMENDMENT" means the First Amendment to Credit
Agreement dated as of October 23, 2001, among the Borrower, the Banks listed on
the signature pages thereof, Chase as Administrative Agent and the Syndication
Agent and Co-Documentation Agents.
(b) Amendment to Financial Information Representation and
Warranty.
(i) Section 4.04(a) of the Credit Agreement is hereby
amended by deleting the year "1999" from the date in the
second line and replacing it with the year "2000." Section
4.04(a) of the Credit Agreement is further amended by deleting
the term "Borrower's 1999 Form 10-K" and replacing it with the
term "Borrower's 2000 Form 10-K."
(ii) Section 4.04(b) of the Credit Agreement is
hereby amended by deleting the year "2000" from the date in
the second line and replacing it with the year "2001."
(iii) Section 4.04(c) of the Credit Agreement is
hereby amended by deleting the year "2000" from the date in
the first line and replacing it with the year "2001."
(c) Amendment to The Agents Section. Section 7.02 is hereby
amended by replacing the words "Bank of America, N.A." with "The Chase Manhattan
Bank."
(d) Amended and Restated Schedule 1.01. Schedule 1.01 to the
Credit Agreement is hereby amended, restated, and replaced in its entirety by
the Schedule 1.01 attached to this First Amendment.
SECTION 3. Limitations. The amendments set forth herein are limited
precisely as written and shall not (a) be deemed to be a waiver or modification
of any other term or condition of the Credit Agreement or (b) except as
expressly set forth herein, prejudice any right or rights which the Banks may
now have or may have in the future under or in connection with the Credit
Agreement or any of the other documents or instruments referred to therein.
Except as expressly modified hereby or by express written amendments thereof,
the Credit Agreement and each of the other documents and instruments executed in
connection with any of the foregoing are and shall remain in full force and
effect. In the event of a conflict between this First Amendment and any of the
foregoing documents, the terms of this First Amendment shall be controlling.
SECTION 5. Effectiveness. This First Amendment shall not be effective
unless and until the Administrative Agent shall have received this First
Amendment, executed and delivered by the Borrower, the Administrative Agent and
the Required Banks.
SECTION 6. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and each of the Banks that
(a) each of the representations and warranties made by the Borrower in or
pursuant to the Credit Agreement is true and correct in all material respects as
of the date hereof, as if made (after giving effect to this First Amendment) on
and as of such date, except for any representations and warranties made as of a
specified date, which are true and correct in all material respects as of such
specified date and (b)
after giving effect to this First Amendment, no Default or Event of Default has
occurred and is continuing as of the date hereof.
SECTION 7. Adoption, Ratification and Confirmation of Credit Agreement.
The Borrower hereby adopts, ratifies and confirms the Credit Agreement, as
amended hereby, and acknowledges and agrees that the Credit Agreement, as
amended hereby, is and remains in full force and effect.
SECTION 8. Governing Law. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Descriptive Headings, Etc. The descriptive headings of the
several sections of this First Amendment are inserted for convenience only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
SECTION 10. Entire Agreement. This First Amendment and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof.
SECTION 11. Counterparts. This First Amendment may be executed in any
number of counterparts (including by telecopy) and by different parties on
separate counterparts and all of such counterparts shall together constitute one
and the same instrument.
SECTION 12. Successors. The execution and delivery of this First
Amendment by any Bank shall be binding upon each of its successors and assigns
(including transferees of its Commitment and Loans in whole or in part prior to
the effectiveness hereof) and binding in respect of all of its Commitment and
Loans.
[signatures begin on the next page]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their respective authorized officers as of the day and
year first above written.
XXXXXX XXXXXX, INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Bank
By:_____________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank
By:_____________________________________
Name:________________________________
Title:_______________________________
BANK ONE, NA
By:_____________________________________
Name:________________________________
Title:_______________________________
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:________________________________
Title:_______________________________
CITIBANK, N.A.
By:_____________________________________
Name:________________________________
Title:_______________________________
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_____________________________________
Name:________________________________
Title:_______________________________
By:_____________________________________
Name:________________________________
Title:_______________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:_____________________________________
Name:________________________________
Title:_______________________________
TORONTO DOMINION (TEXAS), INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
U.S. BANK NATIONAL ASSOCIATION
By:_____________________________________
Name:________________________________
Title:_______________________________
ABN AMRO BANK N.V.
By:_____________________________________
Name:________________________________
Title:_______________________________
ARAB BANKING CORPORATION
By:_____________________________________
Name:________________________________
Title:_______________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:_____________________________________
Name:________________________________
Title:_______________________________
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:_____________________________________
Name:________________________________
Title:_______________________________
XXXXX FARGO BANK TEXAS, N.A.
By:_____________________________________
Name:________________________________
Title:_______________________________
