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Exhibit 10.6.1
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
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This Amendment (this "AMENDMENT") is entered into as of September 29,
2000 by and among Nationwide Mutual Insurance Company ("NATIONWIDE MUTUAL"),
Nationwide Life Insurance Company ("NATIONWIDE LIFE"), Nationwide Financial
Services, Inc. ("NFS"; Nationwide Mutual, Nationwide Life and NFS are herein
referred to individually as a "BORROWER" and collectively as the "BORROWERS"),
Bank One, NA, individually and as agent (the "AGENT"), and the other financial
institutions signatory hereto.
RECITALS
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A. The Borrowers, the Agent and the Lenders are party to that certain
364-Day Credit Agreement dated as of May 25, 2000 (the "CREDIT AGREEMENT").
Unless otherwise specified herein, capitalized terms used in this Amendment
shall have the meanings ascribed to them by the Credit Agreement.
B. The Borrowers, the Agent and the undersigned Lenders wish to amend
the Credit Agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Upon the "Effective Date" (as defined
below), the Credit Agreement shall be amended as follows:
(a) Article I of the Credit Agreement is amended by inserting the
following new definition in alphabetical order:
"Five Year Credit Agreement" means that certain Five Year Credit
Agreement, dated as of May 25, 2000, among the Borrowers, the financial
institutions party thereto and Bank One, NA, as agent for such
financial institutions.
(b) Section 4.2(b) of the Credit Agreement is amended in its
entirety to read as follows:
(b) The representations and warranties of the applicable Borrower
contained in ARTICLE V are true and correct as of such Borrower Date
except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier
date; PROVIDED, HOWEVER, that Advances made to Nationwide Life under
this Agreement for commercial paper back-up in an aggregate amount
which, together with all Advances made to Nationwide Life for
commercial paper back-up under the Five Year Credit Agreement, does not
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exceed $300,000,000, will not be subject to the truthfulness of the
representations and warranties set forth in SECTION 5.5.
2. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. Each Borrower
represents and warrants that:
(a) The execution, delivery and performance by such Borrower of this
Amendment have been duly authorized by all necessary corporate
proceedings and that this Amendment is a legal, valid and binding
obligation of such Borrower enforceable against such Borrower in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar law affecting creditors' rights
generally and by general principles of equity;
(b) Each of the representations and warranties of such Borrower
contained in the Credit Agreement is true and correct on and as of the
date hereof as if made on the date hereof except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty was true and
correct on and as of such earlier date;
(c) After giving effect to this Amendment, no Default or Unmatured
Default has occurred and is continuing with respect to such Borrower.
3. EFFECTIVE DATE. SECTION 1 of this Amendment shall become effective
upon the execution and delivery hereof by the Borrowers, the Agent and the
Required Lenders (without respect to whether it has been executed and delivered
by all the Lenders).
4. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically amended above, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Agent or any Lender under the Credit Agreement or any Loan Document,
nor constitute a waiver of any provision of the Credit Agreement or any
Loan Document, except as specifically set forth herein. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of
similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
5. COSTS AND EXPENSES. Each Borrower hereby affirms its joint and
several obligation under Section 9.6 of the Credit Agreement to reimburse the
Agent for all reasonable costs, internal charges and out-of-pocket expenses paid
or incurred by the Agent in connection with the preparation, negotiation,
execution and delivery of this Amendment, including but not limited to the
attorneys' fees and time charges of attorneys for the Agent with respect
thereto.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION,
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735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date and year first above written.
NATIONWIDE MUTUAL INSURANCE COMPANY
By:
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Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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NATIONWIDE LIFE INSURANCE COMPANY
By:
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Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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NATIONWIDE FINANCIAL SERVICES, INC.
By:
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Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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BANK ONE, NA, as Agent and as a Lender
By:
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Title:
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THE CHASE MANHATTAN BANK, as a Lender
By:
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Title:
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S-1
[TO AMENDMENT NO. 1]
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THE BANK OF NEW YORK, as a Lender
By:
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Title:
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CITICORP USA, INC., as a Lender
By:
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Title:
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as a Lender
By:
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Title:
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BANK OF AMERICA, N.A., as a Lender
By:
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Title:
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FIRST UNION NATIONAL BANK, as a Lender
By:
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Title:
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MELLON BANK, N.A., as a Lender
By:
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Title:
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S-2
[TO AMENDMENT NO. 1]
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FLEET NATIONAL BANK, as a Lender
By:
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Title:
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By:
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Title:
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XXXXX FARGO BANK, N.A., as a Lender
By:
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Title:
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FIRSTAR BANK, NA, as a Lender
By:
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Title:
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THE HUNTINGTON NATIONAL BANK, as a Lender
By:
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Title:
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NATIONAL CITY BANK, as a Lender
By:
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Title:
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S-3
[TO AMENDMENT NO. 1]
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STATE STREET BANK AND TRUST COMPANY, as a
Lender
By:
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Title:
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WACHOVIA BANK, NA, as a Lender
By:
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Title:
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FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By:
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Title:
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FIRST HAWAIIAN BANK, as a Lender
By:
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Title:
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S-4
[TO AMENDMENT NO. 1]
