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Exhibit 10(a)
CONFORMED COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of September 8, 1997 to the Credit Agreement dated
as of August 12, 1996 (the "Credit Agreement") among NATIONWIDE MUTUAL
INSURANCE COMPANY, NATIONWIDE LIFE INSURANCE COMPANY, the BANKS party thereto
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement to
enable Nationwide Financial Services, Inc. ("NFS") to become a party to the
Credit Agreement and a Borrower thereunder;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference
to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Credit Agreement shall, after this Amendment becomes
effective, refer to the Credit Agreement as amended hereby.
SECTION 2. Addition of Borrower. On and after the Amendment Effective
Date (as defined in Section 7 hereof), NFS shall be a party to the Credit
Agreement and, subject to the terms and conditions thereof as amended hereby,
shall have all the rights and obligations of a Borrower thereunder.
SECTION 3. Particular Amendments. The Credit Agreement is hereby
amended as follows:
(a) The definition of Availability Percentage is amended to
read in its entirety as follows:
"Availability Percentage" means, with respect to any
Borrower, 33-1/3%; provided that if the Commitments are
terminated with respect to one or more but not all Borrowers
pursuant to Section 6.1, the Availability Percentage of the
Borrower or Borrowers with respect to which the Commitments
are terminated shall be zero and the Availability Percentage
of the other Borrower or Borrowers shall be the quotient of
100% divided by the number of such other Borrowers.
(b) The first sentence of the definition of Borrower is
amended to read as follows:
"Borrower" means any of Nationwide Mutual,
Nationwide Life or NFS.
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(c) The following definition is added to Section 1.1 in its
appropriate alphabetical position:
"Consolidated Tangible Net Worth" means at any date
the consolidated shareholders' equity of NFS and its
consolidated subsidiaries plus any unrealized losses or less
any unrealized gains (in each case to the extent reflected in
the determination of such consolidated shareholders' equity)
related, directly or indirectly, to securities
available-for-sale, as determined in accordance with
Statement of Financial Accounting Standards No. 115 (or any
successor statements or amendments thereto) (in each case as
affected by any subsequent relevant pronouncements of the
Financial Accounting Standards Board or, if, and to the
extent applicable, the Securities and Exchange Commission)
and less Intangible Assets, all determined as of such date.
For purposes of this definition, the term "Intangible Assets"
means the amount (to the extent reflected in determining such
consolidated shareholders' equity) of (i) all write-ups
(other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of
such business) subsequent to December 31, 1996 in the book
value of any asset owned by NFS or a consolidated subsidiary
and (ii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, anticipated future benefit of tax
loss carry-forwards, copyrights, organization or
developmental expenses and other intangible assets; provided
however that deferred policy acquisition costs shall not be
considered Intangible Assets for purposes of this definition.
(d) The definition of Material Affiliate is amended by adding
the phrase "or NFS" immediately following the reference to Nationwide
Life in clause (ii) thereof.
(e) The definition of Material Subsidiary is amended by
adding the phrase "or NFS" immediately following the reference to
Nationwide Life in clause (ii) thereof.
(f) The following definition is added to Section 1.1 in its
appropriate alphabetical position:
"NFS" means Nationwide Financial Services, Inc., a
Delaware corporation, and its successors.
(g) The definition of Statutory Surplus is amended by
changing the phrase "either Borrower" to "either Nationwide Mutual or
Nationwide Life".
(h) Section 1.2 is amended (i) by redesignating the existing
text thereof as subsection (a) and adding the following language at
the commencement of the first sentence thereof: "In the case of
Nationwide Mutual and Nationwide Life," and (ii) by adding the
following new subsection (b):
(b) In the case of NFS, unless otherwise specified
herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to
time, applied on a basis consistent (except for changes
concurred in by such Borrower's independent public
accountants) with the most recent audited consolidated
financial statements of such Borrower and its consolidated
subsidiaries delivered to the Banks, provided that, if such
Borrower notifies the Administrative Agent that such Borrower
wishes to amend any covenant in Article 5 to eliminate the
effect of any change in generally accepted accounting
principles on the operation of such covenant (or if the
Administrative Agent notifies such Borrower that the Required
Banks wish to amend Article 5 for such purpose), then such
Borrower's compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally
accepted accounting principles became effective, until either
such notice is withdrawn or such covenant is amended in a
manner satisfactory to the Borrowers and the Required Banks.
(i) The word "Adjusted" in clause (ii) of Section 2.7(d) is
deleted.
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(j) The following new subsection (c) of Section 4.1 is added:
(c) In the case of NFS, such Borrower is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(k) Section 4.4(b) is amended by the addition of the phrase
"(or, in the case of NFS, prior to September 1, 1997)" immediately
following the phrase "prior to the date hereof".
(l) Section 5.1(a)(i) is amended by changing the phrase "each
Borrower" to "each of Nationwide Mutual and Nationwide Life".
(m) Section 5.1(a)(ii) is amended (i) by adding the phrase
"and NFS" immediately following the first reference to Nationwide
Life, (ii) by substituting the phrase "such Borrower" for the second
reference to Nationwide Life and (iii) by adding the phrase "(if any")
immediately following the phrase "previous fiscal year".
(n) Section 5.1(b) is amended (i) by adding the phrase "(i)
in the case of Nationwide Mutual and Nationwide Life," immediately
preceding the phrase "the quarterly statement of such Borrower" and
(ii) by adding the following clause (ii) thereto:
and (ii) in the case of NFS, the consolidated financial
statements of NFS as of the end of such fiscal quarter,
setting forth in each case in comparative form the figures
for the corresponding quarter of the previous fiscal year (if
any), all certified (subject to normal year-end adjustments)
as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or
the chief accounting officer of NFS;
(o) Section 5.1(e) is amended by adding the phrase "IS OR"
immediately preceding the word "becomes".
(p) Section 5.8(a) is amended by substituting the term
"$10,000,000" for clauses (i) and (ii) thereof.
(q) Section 5.8(j) is amended by adding the phrase "(i) in
the case of Nationwide Mutual or Nationwide Life," immediately
preceding the phrase Statutory Surplus and by adding the phrase "and
(ii) in the case of NFS, Consolidated Tangible Net Worth" immediately
following the phrase Statutory Surplus.
(r) The following new Section 5.10 is added to Article 5:
SECTION 5.10. Additional Covenants of NFS. (a)
NFS agrees that Consolidated Tangible Net Worth will at no
time be less than $1,225,000,000.
(b) NFS agrees that it will at all times maintain
ownership, free and clear of any Lien, of 100% of the
outstanding capital stock of Nationwide Life.
(s) Section 6.1(l) is amended by adding the phrase "(i) in
the case of Nationwide Mutual or Nationwide Life," immediately
preceding the phrase Statutory Surplus and by adding the phrase "and
(ii) in the case of NFS, Consolidated Tangible Net Worth" immediately
following the phrase Statutory Surplus.
(t) Section 6.1(m) is amended by adding the phrase "or NFS"
immediately following the reference to Nationwide Life.
(u) Each reference in the Agreement to "either Borrower" or
"both Borrowers", if not amended pursuant to the preceding subsections
of this Section 3, is changed to "any Borrower" or "all Borrowers",
respectively.
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SECTION 4. Representations of Borrowers. Each Borrower represents and
warrants that (i) the representations and warranties of such Borrower set forth
in Article 4 of the Credit Agreement will be true on and as of the Amendment
Effective Date and (ii) no Default with respect to such Borrower will have
occurred and be continuing on such date.
SECTION 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 7. Effectiveness. This Amendment shall become effective on
the date when the following conditions are met (the "Amendment Effective
Date"):
(a) the Administrative Agent shall have received from each of the
Borrowers and the Banks a counterpart hereof signed by such party or facsimile
or other written confirmation (in form satisfactory to the Administrative
Agent) that such party has signed a counterpart hereof;
(b) the Administrative Agent shall have received a duly executed Note
of NFS for the account of each Bank, dated on or before the Amendment Effective
Date and complying with the provisions of Section 2.5 of the Agreement;
(c) the Administrative Agent shall have received an opinion of Druen,
Dietrich, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrowers, substantially to the
effect of Exhibit E to the Agreement with reference to this Amendment and the
Agreement as amended hereby; and
(d) the Administrative Agent shall have received all documents it may
reasonably request relating to the existence of the Borrowers, the corporate
authority for and the validity of this Amendment, the Agreement and the Notes,
and any other matters relevant hereto, all in form and substance satisfactory
to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrowers and the Banks of
the Amendment Effective Date, and such notice shall be conclusive and binding
upon all parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
NATIONWIDE MUTUAL INSURANCE COMPANY
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President and
Treasurer
NATIONWIDE LIFE INSURANCE COMPANY
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President and
Treasurer
NATIONWIDE FINANCIAL SERVICES, INC.
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President Finance &
Treasurer
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By /s/▇▇▇▇▇ ▇. FALL
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Title: Vice President
THE BANK OF NEW YORK
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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BANK ONE, COLUMBUS, NA
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
MELLON BANK, N.A.
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Officer
THE CHASE MANHATTAN BANK
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
FLEET NATIONAL BANK
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
THE HUNTINGTON NATIONAL BANK
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
NATIONAL CITY BANK OF COLUMBUS
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Officer
ROYAL BANK OF CANADA
By /s/▇.▇. ▇▇▇▇▇▇▇
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Title: Manager
STATE STREET BANK AND TRUST COMPANY
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A.
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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