1
Exhibit 10.1
AETNA SERVICES, INC.,
AS BORROWER
AETNA INC.,
AS GUARANTOR
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 27, 2000
X.X. XXXXXX SECURITIES INC.,
Lead Arranger,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent,
DEUTSCHE BANK AG, NEW YORK BRANCH,
Co-Administrative Agent
CITIBANK, N.A.,
Syndication Agent
THE CHASE MANHATTAN BANK,
Senior Managing Agent
2
AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment and Restatement") dated as of March 27,
2000, among AETNA SERVICES, INC. (the "Borrower"),
AETNA INC. (the "Guarantor"), the BANKS listed on the
signature pages hereof (the "Banks"), and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative
Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, certain of the parties hereto have heretofore entered
into a Credit Agreement dated as of April 1, 1999 (the "Agreement");
WHEREAS, at the date hereof, there are no Loans outstanding
under the Agreement; and
WHEREAS, the parties hereto desire to amend such Agreement as
set forth herein and to restate the Agreement in its entirety to read as set
forth in the Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the 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 Agreement shall from and after the date hereof refer
to the Agreement as amended and restated hereby.
SECTION 2. Amendment, Replacement and Restatement. (a) The
Agreement, including all schedules and exhibits thereto, is hereby terminated
and simultaneously replaced by a new credit agreement, this Amendment and
Restatement, identical to the Agreement except as expressly set forth below.
(b) Section 1.01 of the Agreement is hereby amended by (i)
deleting the definitions of the defined terms "Level I Period", "Level II
Period", "Level III Period", "Level IV Period", "Level V Period", "Level VI
Period", "Level VII Period", "Level VIII Period" and "Termination Date" in their
entirety and (ii) inserting the following definitions in the appropriate
alphabetical order:
3
"Amended and Restated Credit Agreement" means the Amended and
Restated Credit Agreement dated as of March 27, 2000, with respect to
this Agreement.
"Base Rate Margin" has the meaning set forth in Section
2.08(a).
"Guarantor's 1999 Form 10-K" means the Guarantor's annual
report on Form 10-K for 1999 as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended.
"Level I Period" means any period during which any long-term
Senior Unsecured Debt of the Borrower has ratings that are better than
or equal to at least two of the following three ratings: (i) A+ by S&P
and/or (ii) A1 by Xxxxx'x and/or (iii) A+ by Duff; provided that if S&P
or Xxxxx'x or Xxxx changes its rating system after the date hereof, the
new rating of such rating agency that most closely corresponds to the
level specified above for such rating agency shall be substituted for
such level.
"Level II Period" means any period (other than a Level I
Period) during which any long-term Senior Unsecured Debt of the
Borrower has ratings that are better than or equal to at least two of
the following three ratings: (i) A by S&P and/or (ii) A2 by Xxxxx'x
and/or (iii) A by Duff; provided that if S&P or Xxxxx'x or Xxxx changes
its rating system after the date hereof, the new rating of such rating
agency that most closely corresponds to the level specified above for
such rating agency shall be substituted for such level.
"Level III Period" means any period (other than a Level I
Period or Level II Period) during which any long-term Senior Unsecured
Debt of the Borrower has ratings that are better than or equal to at
least two of the following three ratings: (i) A- by S&P and/or (ii) A3
by Xxxxx'x and/or (iii) A- by Duff; provided that if S&P or Xxxxx'x or
Duff changes its rating system after the date hereof, the new rating of
such rating agency that most closely corresponds to the level specified
above for such rating agency shall be substituted for such level.
"Level IV Period" means any period (other than a Level I
Period, Level II Period or Level III Period) during which any long-term
Senior Unsecured Debt of the Borrower has ratings that are better than
or equal to at least two of the following three ratings: (i) BBB+
4
by S&P and/or (ii) Baa1 by Xxxxx'x and/or (iii) BBB+ by Duff; provided
that if S&P or Xxxxx'x or Xxxx changes its rating system after the date
hereof, the new rating of such rating agency that most closely
corresponds to the level specified above for such rating agency shall
be substituted for such level.
"Level V Period" means any period (other than a Level I
Period, Level II Period, Level III Period or Level IV Period) during
which any long-term Senior Unsecured Debt of the Borrower has ratings
that are better than or equal to at least two of the following three
ratings: (i) BBB by S&P and/or (ii) Baa2 by Xxxxx'x and/or (iii) BBB by
Duff; provided that if S&P or Xxxxx'x or Xxxx changes its rating system
after the date hereof, the new rating of such rating agency that most
closely corresponds to the level specified above for such rating agency
shall be substituted for such level.
"Level VI Period" means any period (other than a Level I
Period, Level II Period, Level III Period, Level IV Period or Level V
Period) during which any long-term Senior Unsecured Debt of the
Borrower has ratings that are better than or equal to at least two of
the following three ratings: (i) BBB- by S&P and/or (ii) Baa3 by
Xxxxx'x and/or (iii) BBB- by Duff; provided that if S&P or Xxxxx'x or
Duff changes its rating system after the date hereof, the new rating of
such rating agency that most closely corresponds to the level specified
above for such rating agency shall be substituted for such level.
"Level VII Period" means any period other than a Level I
Period, Level II Period, Level III Period, Level IV Period, Level V
Period or Level VI Period.
"Termination Date" means the first to occur of (a) March 27,
2001, or, if such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day, or (b) the date of the closing of
any transaction, or the date of the closing of the final transaction in
a series of transactions (including, without limitation, a distribution
to shareholders of the Guarantor), that results in all or substantially
all of the Guarantor's health care business as it exists on the date
hereof being owned, directly or indirectly, by one publicly traded
entity ("Healthco") and all or substantially all of the Guarantor's
financial services business as it exists on the date hereof being
owned,
5
directly or indirectly, by a publicly traded entity other than
Healthco.
(c) Section 2.08(a) of the Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof the
following:
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to sum of the Base Rate
Margin plus the Base Rate for such day. Such interest shall be payable
for each Interest Period on the earlier of (i) the last day of the
Interest Period applicable thereto or (ii) the Termination Date. Any
overdue principal of and, to the extent permitted by law, overdue
interest on any Base Rate Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 1% plus
the Base Rate Margin plus the Base Rate for such day.
"Base Rate Margin" applicable to any Base Rate Loan
outstanding on any day means:
(i) if such day falls within a Level I Period, Level
II Period, Level III Period, Level IV Period or Level V
Period, then 0%;
(ii) if such day falls within a Level VI Period, then
(A) 0%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .250%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .375%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%; and
(iii) if such day falls within a Level VII Period,
then .750%.
(d) Section 2.08(b) of the Agreement is hereby amended by
deleting the definition of "CD Margin" in its entirety and substituting in lieu
thereof the following:
"CD Margin" applicable to any CD Loan outstanding on any day
means:
6
(i) if such day falls within a Level I Period, then
(A) .305%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .405%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .505%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%;
(ii) if such day falls within a Level II Period, then
(A) .345%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .445%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .545%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%;
(iii) if such day falls within a Level III Period,
then (A) .435%, if such day falls within any calendar quarter
with respect to which the Utilization Percentage is less than
or equal to 25%, (B) .535%, if such day falls within any
calendar quarter with respect to which the Utilization
Percentage is greater than 25% and less than or equal to 50%
and (C) .635%, if such day falls within any calendar quarter
with respect to which the Utilization Percentage is greater
than 50%;
(iv) if such day falls within a Level IV Period, then
(A) .515%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .615%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .715%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%;
(v) if such day falls within a Level V Period, then
(A) .740%, if such day falls within any calendar quarter with
respect to which the
7
Utilization Percentage is less than or equal to 25%, (B)
.840%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is greater than
25% and less than or equal to 50% and (C) .940%, if such day
falls within any calendar quarter with respect to which the
Utilization Percentage is greater than 50%;
(vi) if such day falls within a Level VI Period, then
(A) .950%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) 1.200%, if such day falls within any
calendar quarter with respect to which the Utilization
Percentage is greater than 25% and less than or equal to 50%
and (C) 1.325%, if such day falls within any calendar quarter
with respect to which the Utilization Percentage is greater
than 50%; and
(vii) if such day falls within a Level VII Period,
then 1.625%.
(e) Section 2.08(c) of the Agreement is hereby amended by
deleting the definition of "Euro-Dollar Margin" in its entirety and substituting
in lieu thereof the following:
"Euro-Dollar Margin" applicable to any Euro-Dollar Loan
outstanding on any day means:
(i) if such day falls within a Level I Period, then
(A) .180%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .280%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .380%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%;
(ii) if such day falls within a Level II Period,
then (A) .220%, if such day falls within any calendar quarter
with respect to which the Utilization Percentage is less than
or equal to 25%, (B) .320%, if such day falls within any
calendar quarter with respect to which the Utilization
Percentage is greater than 25% and
8
less than or equal to 50% and (C) .420%, if such day falls
within any calendar quarter with respect to which the
Utilization Percentage is greater than 50%;
(iii) if such day falls within a Level III Period,
then (A) .310%, if such day falls within any calendar quarter
with respect to which the Utilization Percentage is less than
or equal to 25%, (B) .410%, if such day falls within any
calendar quarter with respect to which the Utilization
Percentage is greater than 25% and less than or equal to 50%
and (C) .510%, if such day falls within any calendar quarter
with respect to which the Utilization Percentage is greater
than 50%;
(iv) if such day falls within a Level IV Period, then
(A) .390%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .490%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .590%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%;
(v) if such day falls within a Level V Period, then
(A) .615%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) .715%, if such day falls within any calendar
quarter with respect to which the Utilization Percentage is
greater than 25% and less than or equal to 50% and (C) .815%,
if such day falls within any calendar quarter with respect to
which the Utilization Percentage is greater than 50%;
(vi) if such day falls within a Level VI Period, then
(A) .825%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or
equal to 25%, (B) 1.075%, if such day falls within any
calendar quarter with respect to which the Utilization
Percentage is greater than 25% and less than or equal to 50%
and (C) 1.200%, if such day falls within any calendar quarter
with respect
9
to which the Utilization Percentage is greater than 50%; and
(vii) if such day falls within a Level VII Period,
then 1.500%.
(f) Section 2.09(a) of the Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof the
following:
(a) Facility Fee. The Borrower shall pay to the Agent for the
account of the Banks ratably in proportion to their Commitments, a
facility fee at the rate of (i) 0.070% per annum during each Level I
Period, (ii) 0.080% per annum during each Level II Period, (iii) 0.090%
per annum during each Level III Period, (iv) 0.110% per annum during
each Level IV Period, (v) 0.135% per annum during each Level V Period,
(vi) 0.175% during each Level VI Period and (vii) 0.250% during each
Level VII Period. Such facility fee shall accrue (i) from and including
the date on which the Amended and Restated Credit Agreement becomes
effective to but excluding the last day of the Revolving Credit Period,
in each case, on the daily average aggregate amount of the Commitments
(whether used or unused) and (ii) if any Loans remain outstanding after
the Revolving Credit Period, from and including the last day of the
Revolving Credit Period to but excluding the date such Loans shall be
repaid in full, on the daily average aggregate outstanding principal
amount of such Loans.
(g) Section 4.04 of the Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Guarantor and its
Consolidated Subsidiaries as of December 31, 1999, the related
consolidated statements of cash flows for the year then ended and
consolidated statement of income and retained earnings for the year
then ended, reported on by KPMG LLP and set forth in the Guarantor's
1999 Annual Report to Shareholders, copies of which have been delivered
to the Agent for distribution to each of the Banks, fairly present, in
conformity with United States generally accepted accounting principles,
the consolidated financial position of the Guarantor and its
Consolidated
10
Subsidiaries as of such date and their consolidated results of
operations and cash flows for such year.
(b) Except as disclosed in the Guarantor's 1999 Form 10-K,
since December 31, 1999, there has been no material adverse change in
the business, financial position or results of operations of the
Guarantor and its Consolidated Subsidiaries, taken as a whole.
(h) Sections 4.05 and 4.09 of the Agreement are hereby amended
by deleting each reference to "the Guarantor's 1998 Form K" and substituting in
lieu thereof the following: "the Guarantor's 1999 Form K".
SECTION 3. Confirmation of Guaranty. The Guarantor confirms
that its guaranty of the obligations of the Borrower pursuant to Article IX of
the Agreement shall apply to the obligations of the Borrower under the Agreement
as amended and restated hereby.
SECTION 4. Changes in Commitments. With effect from and
including the date this Amendment and Restatement becomes effective in
accordance with Section 6,
(a) each Person listed on the signature pages hereof which is
not a party to the Agreement shall become a Bank party to the
Agreement;
(b) the Commitment of each Bank shall be the amount set forth
opposite the name of such Bank on the signature pages hereof; and
(c) any Bank not listed on the signature pages hereof shall
upon such effectiveness cease to be a Bank party to the Agreement and
shall have a Commitment of zero, and all accrued fees and other amounts
payable under the Agreement for the account of such Bank shall be due
and payable on such date; provided that, the provisions of Sections
2.13, 2.15 and 10.03 of the Agreement shall continue to inure to the
benefit of each such Bank.
SECTION 5. Governing Law. This Amendment and Restatement shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 6. Counterparts; Conditions to Effectiveness. This
Amendment and Restatement 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. This Amendment
11
and Restatement shall become effective as of the date hereof when the Agent
shall have received:
(a) duly executed counterparts hereof signed by the Borrower,
the Guarantor and all of the Banks listed on the signature pages hereof
(or, in the case of any party as to which an executed counterpart shall
not have been received, the Agent shall have received telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party);
(b) an opinion of (i) Xxxxxxx X. Xxxxxx III, counsel to the
Borrower and the Guarantor, dated the date hereof and addressed to the
Banks, and of (ii) Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Borrower and the Guarantor, dated the date hereof and addressed to the
Banks, in each case to the effect set forth in Exhibits A-1 and A-2
hereto, and the Borrower and the Guarantor hereby instruct such counsel
to deliver such opinions to the Agent;
(c) a certificate from the Vice Chairman for Strategy and
Finance or the Vice President, Finance of each of the Borrower and the
Guarantor, dated the date hereof, and certifying that (i) no Default
has occurred and is continuing as of the date hereof and (ii) the
representations and warranties set forth in Article IV of the Agreement
as amended hereby are true and correct in all material respects on and
as of the date hereof with the same effect as though made on and as of
such date;
(d) (i) for its own account all fees due and payable to it and
in such amounts as have been previously agreed upon in writing among
the Borrower, the Guarantor and the Agent in connection with this
Amendment and Restatement and (ii) for the account of each Bank, all
accrued fees and other amounts payable under the Agreement; and
(e) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Borrower and the Guarantor,
the corporate authority for and the validity of this Agreement, and any
other matters relevant hereto, all in form and substance satisfactory
to the Agent.
SECTION 7. Original Credit Agreement. Until this Amendment and
Restatement becomes effective as provided in Section 6, the Agreement shall
continue in full force and
12
effect in accordance with the provisions thereof, the rights and obligations of
the parties thereto shall not be affected hereby and all fees and interest
accruing under the Agreement shall continue to accrue at the rates provided for
therein.
SECTION 8. Expenses. The Borrower agrees to reimburse the
Agent for its reasonable out-of-pocket expenses in connection with this
Amendment and Restatement including the reasonable fees, charges and
disbursements of Cravath, Swaine & Xxxxx, counsel for the Agent.
13
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be duly executed as of the date first above
written.
AETNA SERVICES, INC.
by
/s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice Chairman for
Strategy and Finance
Aetna Services, Inc.
000 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President,
Finance
Telecopier: (000) 000-0000
Telex: 99 241
With a copy to:
Aetna Inc.
000 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Telex: 99 241
14
AETNA INC.
by
/s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Vice Chairman for
Strategy and Finance
Aetna Inc.
000 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President,
Finance
Telecopier: (000) 000-0000
Telex: 99 241
With a copy to:
Aetna Inc.
000 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Telex: 99 241
15
Commitment
$40,000,000.00 XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, individually and as
Administrative Agent
by
/s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate
16
Commitment
$40,000,000.00 CITIBANK, N.A.
by
/s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
17
Commitment
$40,000,000.00 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
by
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
by
/s/ Xxxx X. XxXxxx
----------------------------------
Name: Xxxx X. XxXxxx
Title: Director
18
Commitment
$38,000,000.00 THE CHASE MANHATTAN BANK
by
/s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
19
Commitment
$34,500,000.00 BANK ONE, N.A. (CHICAGO OFFICE)
by
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
20
Commitment
$34,500,000.00 STATE STREET BANK AND TRUST
COMPANY
by
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
21
Commitment
$34,500,000.00 FIRST UNION NATIONAL BANK
by
/s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
22
Commitment
$34,500,000.00 FLEET BANK
by
/s/ Jan-Gee X. XxXxxxxx
------------------------------------
Name: Jan-Gee X. XxXxxxxx
Title: Senior Vice President
23
Commitment
$34,500,000.00 MELLON BANK, N.A.
by
/s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
24
Commitment
$34,500,000.00 WACHOVIA BANK, N.A.
by
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
25
Commitment
$30,000,000.00 ABN-AMRO BANK N.V.
by
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Group Vice President
by
/s/ Xxxx Bezelenejnykh Guiller
------------------------------------
Name: Xxxx Bezelenejnykh Guiller
Title: Assistant Vice President
26
Commitment
$30,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH
by
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
27
Commitment
$25,000,000.00 BANK OF AMERICA, N.A.
by
/s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
28
Commitment
$25,000,000.00 BARCLAYS BANK PLC
by
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
29
Commitment
$25,000,000.00 CAJA DE AHORROS Y MONTE
DE XXXXXX XX XXXXXX
by
/s/ Xxxxxx Stilianopoulos
------------------------------------
Name: Xxxxxx Stilianopoulos
Title: Head of Origination
and Syndication
by
/s/ Xxxx Xxxx Xxxxxx Xxxxx
------------------------------------
Name: Xxxx Xxxx Xxxxxx Xxxxx
Title: Head of Origination
Capital Markets
