Exhibit 10.1
THIRD AMENDMENT
dated as of July 25, 2003
to
$1,000,000,000
CREDIT AGREEMENT
dated as of
August 3, 2000, as amended,
among
Xxxx Xxxxxxx Financial Services, Inc.
Xxxx Xxxxxxx Life Insurance Company,
The Banks Listed Herein,
Fleet National Bank,
as Co-Administrative Agent,
JPMorgan Chase Bank,
as Co-Administrative Agent,
Citicorp USA, Inc.,
as Syndication Agent,
The Bank of New York,
as Documentation Agent (364-Day Revolver),
and
Wachovia Bank, National Association,
as Documentation Agent (364-Day Revolver)
Fleet Securities, Inc.,
and
X.X. Xxxxxx Securities Inc.
as
Joint Bookrunners and Joint Lead Arrangers
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT TO CREDIT AGREEMENT ("Third Amendment") dated as of
July 25, 2003, among XXXX XXXXXXX FINANCIAL SERVICES, INC. ("JHFS"), XXXX
XXXXXXX LIFE INSURANCE COMPANY ("JHLIC" and, collectively with JHFS, the
"Borrowers"), the BANKS listed on the signature pages hereof, FLEET NATIONAL
BANK, as Co-Administrative Agent, and JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), as Co-Administrative Agent.
WHEREAS, the Borrowers, Xxxx Xxxxxxx Capital Corporation ("JHCC"),
the Banks, and the Agent entered into to a Credit Agreement dated as of August
3, 2000 ("Original Credit Agreement") pursuant to which the Banks agreed, on the
terms and conditions stated therein, to extend credit to the Borrowers and JHCC
pursuant to a 364-Day Revolving Credit Facility ("364-Day Revolver") and a
Multi-Year Revolving Credit Facility ("Multi-Year Revolver");
WHEREAS, the Borrowers, the Banks, and the Agent entered into a First
Amendment to Credit Agreement dated as of July 27, 2001 ("First Amendment")
pursuant to which the parties made certain amendments to the Original Credit
Agreement (as so amended, the "First Amended Credit Agreement") so as, among
other things, (i) to acknowledge the termination of JHCC as a Borrower
thereunder, (ii) to renew the 364-Day Revolver for an additional 364-day period
commencing on the date of the First Amendment, (iii) to reallocate the 364-Day
Commitment of BankOne, NA (Main Office Chicago), (iv) to clarify the Borrowers'
reporting obligations concerning their financial covenants, and (v) to eliminate
commercial paper ratings as a basis for determining pricing with respect to the
364-Day Revolver;
WHEREAS, the Borrowers, the Banks, and the Agent entered into a Second
Amendment to Credit Agreement dated as of July 26, 2002 ("Second Amendment")
pursuant to which the parties made certain further amendments to the First
Amended Credit Agreement (as so amended, the "Second Amended Credit Agreement")
so as, among other things, (i) to renew the 364-Day Revolver for an additional
364-day period commencing on the date of the Second Amendment, (ii) to amend the
pricing for the 364-Day Revolver to include a premium of 15 basis points in the
event the Borrowers exercise the one-year term-out option thereunder, (iii) to
eliminate the Adjusted Statutory Surplus covenant and JHLIC's reporting
obligations with respect thereto and to amend the remaining financial covenants
applicable to both the 364-Day Revolver and the Multi-Year Revolver, (iv) to
amend the conditions for optional increases in the aggregate Commitments under
the 364-Day Revolver or the Multi-Year Revolver, and (v) to reallocate the
364-Day Commitments of Xxxxxx Commercial Paper, Inc., The Northern Trust
Company, and Westdeutsche Landesbank Gerozentrale, New York Branch;
WHEREAS, the Borrowers have requested that the Banks make certain further
amendments to the Second Amended Credit Agreement so as, among other things, (i)
to renew the 364-Day Revolver for an additional 364-day period commencing on the
date of the Third Amendment, and (ii) to reallocate the 364-Day Commitments of
Comerica Bank and Credit Suisse First Boston (each an "Exiting Bank" and,
collectively, the "Exiting Banks"); and
WHEREAS, the Banks are willing to make such amendments on the terms and
conditions set forth in this Third Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used but not defined herein shall
have the same meanings herein
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as such terms have in the Second Amended Credit Agreement.
2. Amendments to Second Amended Credit Agreement. Upon the terms and
subject to the conditions of this Third Amendment, the Second Amended Credit
Agreement is hereby amended in each of the following respects:
(a) The definition of "Expiration" in Section 1.01 of the Second
Amended Credit Agreement is amended to read in its entirety as follows:
""Expiration" means, with respect to the 364-Day Revolver, (i)
July 23, 2004, which is the 364th day after the Third Amendment Effective
Date, or (ii) if extended in accordance with Section 2.06(b), the 364th
day after the immediately preceding Expiration."
(b) The definition of "364-Day Termination Date" in Section 1.01 of
the Second Amended Credit Agreement is amended to read in its entirety as
follows:
""364-Day Termination Date" means (i) July 23, 2004, which is
the 364th day after the Third Amendment Effective Date, or (ii) if the
maturity of the 364-Day Revolver shall have been extended pursuant to
Section 2.06(b) hereof, the 364th day after the immediately preceding
Expiration."
(c) Section 1.01 of the Second Amended Credit Agreement is amended
by inserting the following new definitions:
""Third Amendment" means the Third Amendment to Credit
Agreement dated as of July 25, 2003."
""Third Amendment Effective Date" means July 25, 2003, which
is the date on which the Third Amendment becomes effective in accordance
with Section 5 thereof."
3. Amendments to 364-Day Revolver Notes. Each of the 364-Day Revolver
Notes (other than the Exiting Bank Notes (as defined below)) is amended by
changing the date at the top of such note to the date of the Third Amendment
Effective Date.
4. Amendments to 364-Day Commitments. The 364-Day Commitment of each
Exiting Bank under the 364-Day Revolver is hereby terminated as of the Third
Amendment Effective Date, and each Exiting Bank is hereby released from its
obligations under the Second Amended Credit Agreement with respect to the
364-Day Revolver (but not with respect to the Multi-Year Revolver) as of the
Third Amendment Effective Date. From and after the Third Amendment Effective
Date, the 364-Day Commitments shall be allocated among the Banks as reflected on
the signature pages hereof under the heading "364-Day Commitments."
5. Conditions Precedent. The amendments and agreements set forth in
Sections 2, 3, and 4 above shall become effective only upon the satisfaction of
the following conditions:
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto that is allocated a 364-Day Commitment (or, in the case
of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic,
telex, facsimile, or other written confirmation from such party of the
execution and delivery of a counterpart hereof by such party);
(b) receipt by the Agent of each Exiting Bank's 364-Day Revolver
Notes (the "Exiting Bank Notes") for cancellation, and receipt by the
Borrowers of the Exiting Bank Notes marked "Canceled" by the Agent;
provided, that if any Exiting Bank shall be unable to produce one or more
of its original Notes for cancellation, such Exiting Bank shall have
delivered, and the Agent and Borrowers shall have received, an affidavit
of an officer of such Exiting Bank as to the loss, theft, destruction or
mutilation of such Note(s) and certifying that such Note(s) are satisfied
in full and are to be canceled by the Agent, and such Exiting Bank's
unsecured agreement of indemnity concerning any claim under such canceled
Note(s);
-2-
(c) the fact that all amounts payable by the Borrowers on or before
the Third Amendment Effective Date (including the fees then payable, if
any, pursuant to Section 2.08 of the Second Amended Credit Agreement)
shall have been paid in full;
(d) receipt by the Agent of an opinion of Xxxx X. Xxxxxxxx, Vice
President and Counsel of JHLIC, addressed to the Agent and the Banks, in
form and substance satisfactory to the Agent;
(e) receipt by the Agent of an opinion of Goulston & Storrs, P.C.,
special counsel for the Agent, addressed to the Agent and the Banks, in
form and substance satisfactory to the Agent; and
(f) receipt by the Agent of all documents it may reasonably request
relating to the existence of each Borrower, the corporate authority for
and the validity of this Third Amendment, and any other matters relevant
hereto, all in form and substance satisfactory to the Agent;
provided that this Third Amendment shall not become effective or be binding on
any party hereto unless all of the foregoing conditions are satisfied not later
than July 25, 2003. At the closing, the Agent or its counsel shall deliver a
notice to the Borrowers and the Banks advising them of the Third Amendment
Effective Date, and such notice shall be conclusive and binding on all parties
hereto.
6. Representations and Warranties. Each Borrower severally represents and
warrants, but only with respect to itself, that:
(a) Representations in Second Amended Credit Agreement. Each of the
representations and warranties made by such Borrower in the Second Amended
Credit Agreement is true, correct and complete on and as of the date
hereof with the same full force and effect as if each of such
representations and warranties had been made by the Borrower on the date
hereof and in this Third Amendment (except to the extent such
representations and warranties expressly relate to an earlier date).
(b) No Defaults or Events of Default. No Default or Event of Default
exists on the date of this Third Amendment (after giving effect to all of
the arrangements and transactions contemplated by this Third Amendment).
(c) Binding Effect of Documents. This Third Amendment has been duly
authorized, executed and delivered by such Borrower and is in full force
and effect as of the date hereof, and the agreements and obligations of
such Borrower contained herein constitute the legal, valid, and binding
obligations of such Borrower enforceable against such Borrower in
accordance with its terms.
7. Miscellaneous. This Third Amendment may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed an
original, but all of which together shall constitute one instrument. In making
proof of this Third Amendment, it shall not be necessary to produce or account
for more than one counterpart thereof signed by each of the parties hereto.
Except to the extent specifically amended and supplemented hereby, all of the
terms, conditions and provisions of the Second Amended Credit Agreement and the
Notes shall remain unmodified, and the Second Amended Credit Agreement and the
Notes, as amended and supplemented by this Third Amendment, are confirmed as
being in full force and effect, and each Borrower hereby ratifies and confirms
all of its agreements and obligations contained therein. This Third Amendment
and the rights and obligations of each of the parties hereto shall be governed
by and interpreted in accordance with the laws of the Commonwealth of
Massachusetts without regard to conflicts of laws principles. This Third
Amendment shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors in title and assigns.
[Signatures begin on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXX XXXXXXX FINANCIAL SERVICES, INC. XXXX XXXXXXX LIFE INSURANCE COMPANY
By: By:
---------------------------- ----------------------------
Title: Vice President and Treasurer Title: Vice President and Treasurer
---------------------------- ----------------------------
By: By:
---------------------------- ----------------------------
Title: Assistant Treasurer Title: Assistant Treasurer
---------------------------- ----------------------------
000 Xxxxxxxxx Xxxxxx, T-58 000 Xxxxxxxxx Xxxxxx, X-00
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer Attention: reasurer
Fax: (000) 000-0000 Fax: (000) 000-0000
Telex number: 62021772 Telex number: 62021772
with a copy to: with a copy to:
Xxxx Xxxxxxx Financial Services, Inc. Xxxx Xxxxxxx Financial Services, Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law Attention: Investment Law
Fax: (000) 000-0000 Fax: (000) 000-0000
364-Day
Commitments
-----------
$31,000,000 FLEET NATIONAL BANK
("Co-Administrative Agent")
By:
-------------------------------
Title:
----------------------------
$31,000,000 JPMORGAN CHASE BANK
("Co-Administrative Agent")
By:
-------------------------------
Title:
----------------------------
$31,000,000 CITICORP USA, INC.
("Syndication Agent")
By:
-------------------------------
Title:
----------------------------
$31,000,000 THE BANK OF NEW YORK
("Documentation Agent" - 364-Day)
By:
-------------------------------
Title:
----------------------------
$31,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
("Documentation Agent" - 364-Day)
By:
-------------------------------
Title:
----------------------------
$27,000,000 THE BANK OF NOVA SCOTIA
By:
-------------------------------
Title:
----------------------------
$27,000,000 ROYAL BANK OF CANADA
By:
-------------------------------
Title:
----------------------------
$27,000,000 STATE STREET BANK AND TRUST COMPANY
By:
-------------------------------
Title:
----------------------------
364-Day
Commitments
-----------
$24,000,000 ABN AMRO BANK N.V.
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
$24,000,000 BANK OF AMERICA, N.A.
By:
-------------------------------
Title:
----------------------------
$24,000,000 BANK ONE, NA
By:
-------------------------------
Title:
----------------------------
$24,000,000 BARCLAYS BANK PLC
By:
-------------------------------
Title:
----------------------------
$24,000,000 BNP PARIBAS
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
$24,000,000 DEUTSCHE BANK AG, NEW YORK BRANCH
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
$24,000,000 HSBC BANK USA
By:
-------------------------------
Title:
----------------------------
364-Day
Commitments
-----------
$24,000,000 XXXXXX BROTHERS BANK, FSB
By:
-------------------------------
Title:
----------------------------
$24,000,000 XXXXXX XXXXXXX BANK
By:
-------------------------------
Title:
----------------------------
$24,000,000 PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Title:
----------------------------
$24,000,000 SOVEREIGN BANK FSB
By:
-------------------------------
Title:
----------------------------
----------------
Total 364-Day
Commitments
$500,000,000
FLEET NATIONAL BANK, as Agent
By:
---------------------------------
Title: Senior Associate,
Financial Institutions Division
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
JPMORGAN CHASE BANK, as Agent
By:
---------------------------------
Title: Vice President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
