Exhibit 10-s
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This Amendment No. 2 (this "Amendment") dated as of
January 23, 2001 is among KLT Inc. (the "Borrower"), the
undersigned Lenders and Bank One, NA, as agent for the
Lenders (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Agent are
parties to a Second Amended and Restated Credit Agreement
dated as of June 30, 2000 (as previously amended, the
"Credit Agreement"); and
WHEREAS, the Borrower, the Lenders and the Agent desire
to amend the Credit Agreement in certain respects more fully
described below;
NOW, THEREFORE, for good and valuable consideration,
the receipt of which is hereby acknowledged, the parties
agree as follows:
SECTION 1 DEFINED TERMS. Capitalized terms used herein
and not otherwise defined shall have the meanings attributed
to such terms in the Credit Agreement.
SECTION 2 AMENDMENTS TO THE CREDIT AGREEMENT. Effective
upon the satisfaction of the conditions precedent set forth
in Section 4, the Credit Agreement shall be amended as
follows:
(a) Article I is amended by adding the following new
definitions in proper alphabetical sequence:
"Exchange Notes" means notes issued from time to
time by DTI in
exchange for DTI Notes, which notes shall have interest
rates and maturity dates not greater than those of the
DTI Notes as in effect on January 2, 2001.
"Tender Line Facility" means a credit facility
entered into by DTI
providing for loans to DTI, in an aggregate amount not
exceeding $95,000,000, to finance the purchase of DTI
Notes.
"Working Capital Facility" means a working capital
facility entered into by DTI or a Subsidiary thereof
providing for loans to DTI or such Subsidiary, in an
aggregate amount not exceeding $100,000,000, to be used
for operations and capital expenditures.
(b) Article I is further amended by (i) deleting the
definitions of "Bridge Loan Effective Date" and "Bridge Loan
Facility"; (ii) deleting the proviso at the end of
"Facility Termination Date"; and (iii) deleting the existing
definition of "Floating Rate" and substituting the following
therefor:
"Floating Rate" means, for any day, a rate per annum
equal to the Alternate Base Rate as in effect on such day.
(c) Section 6.11 is amended by deleting the existing
clauses (ix), (x) and (xi) and inserting the following new
clauses (ix) and (x) in proper order:
(ix) Indebtedness of DTI and its Subsidiaries
under the DTI Notes, the Exchange Notes, the
Working Capital Facility and the Tender Line
Facility in an aggregate principal amount not
at any time exceeding $480,000,000 (plus any
increase in the accreted value after January
1, 2001).
(x) One or more costless collars or similar
derivative transactions which effectively fix
the downside market risk of the value of the
shares of the Evergreen Resources, Inc. common
stock received pursuant to the sales of certain
properties of a Subsidiary of KLT Gas Inc. as
set forth on Schedule 1 to Amendment No. 1 to
this Agreement.
(d) Section 6.16 is amended by (i) deleting the proviso
in clause (ix) and substituting "provided that the aggregate cash
amount paid for the purchase or redemption of DTI Notes shall not
exceed $95,000,000 and the aggregate amount paid to purchase or
redeem all of the DTI Warrants shall not exceed $6,000,000"
therefor, and (ii) deleting the amount "$125,000,000" in
clause (x) and substituting "$60,000,000" therefor.
(e) Section 6.18 is amended by adding the following
clause (xvi) and (xvii):
(xvi) Liens on the capital stock of the
Subsidiaries of DTI owned by DTI to secure
the obligations of DTI under the Tender Line
Facility and the Exchange Notes.
(xvii) Liens on the assets of the Subsidiaries
of DTI to secure the obligations of such
Subsidiaries under the Working Capital Facility.
SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the
Agent and the Lenders to enter into this Amendment, the
Borrower represents and warrants that:
(a) The representations and warranties set forth in Article
V of the Credit
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Agreement are true, correct and complete on the date hereof
as if made on and as of the date hereof.
(b) No Default or Unmatured Default exists on the date
hereof.
SECTION 4 EFFECTIVE DATE. This Amendment shall become effective as
of the date first written above upon receipt by the Agent of each of the
following:
(a) Counterparts of this Amendment duly executed by the
Borrower and the Required Lenders.
(b) The Third Restated and Amended Support Agreement in
the form of Exhibit A hereto signed by Kansas City Power & Light Company
and the Borrower.
(c) An amendment fee for each Lender which, on or
before 5:00 p.m. (Chicago time) on January 23, 2001, executes and
delivers to the Agent (by facsimile or otherwise) a counterpart hereof,
such fee to be in an amount equal to 0.075% of such Lender's Commitment.
SECTION 6 RATIFICATION. The Credit Agreement, as
amended hereby, is hereby ratified, approved and confirmed in all respects.
SECTION 7 REFERENCES TO CREDIT AGREEMENT. From and after the effective
date hereof, each reference in the Credit Agreement to "this Agreement",
"hereof", or "hereunder" or words of like import, and all references to
the Credit Agreement in any and all other agreements, instruments,
documents, notes, certificates and other writings of every kind and
nature, shall be deemed to mean the Credit Agreement as amended by
this Amendment.
SECTION 8 COSTS AND EXPENSES. The Borrower agrees to
pay all costs, fees and out of pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent,
which attorneys may be employees of the Agent) incurred by
the Agent in connection with the preparation, execution and
enforcement of this Amendment.
SECTION 9 CHOICE OF LAW. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE
LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
SECTION 10 EXECUTION IN 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 shall be deemed to be an original and
all of which taken together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the Borrower, the undersigned
Lenders and the Agent have executed this Amendment as of the
date first above written.
KLT INC.
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
BANK ONE, NA, individually as a Lender and as
Agent
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
ABN AMRO BANK N.V.
By: /s/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President
By: /s/Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Group Vice President
W E S T D E U T S C H E LA N D ES B A NK
GIROZENTRALE, NEW YORK BRANCH,
individually as a Lender and as
Documentation Agent
By: /s/Xxxxxx X. Xxxxxxxxx /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxx
Title: Director Manager
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By: _______________________
Name:_______________________
Title:______________________
COMMERZBANK AKTIENGESELLSCHAFT, NEW
YORK AND GRAND CAYMAN BRANCHES,
individually as a Lender and as
Syndication Agent
By: _______________________
Name:_______________________
Title:______________________
By:_________________________
Name:_______________________
Title:______________________
THE DAI-ICHI KANGYO BANK, LTD., CHICAGO
BRANCH
By: /s/Xxxx X. Xxxxx, Xx.
Name: Xxxx X. Xxxxx, Xx.
Title: Senior Vice President
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