Contract
Exhibit 99.1
EXECUTION VERSION
FIRST AMENDMENT dated as of December 13, 2006 (this
“Amendment”), to the Amended and Restated Five-Year Credit Agreement
dated as of January 20, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among AETNA INC.,
a Pennsylvania corporation (the “Borrower”); the LENDERS from time to
time party thereto; and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in
such capacity, the “Administrative Agent”).
WHEREAS the Borrower has requested that the Lenders agree to amend certain provisions of the
Credit Agreement and the Lenders party hereto, constituting the Required Lenders, are willing to
amend the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein have the
meanings assigned to them in the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement. Effective as of the Amendment
Effective Date (as defined below), the Credit Agreement is hereby amended as follows:
(a) Article I of the Credit Agreement is hereby amended by adding the following
definition in appropriate alphabetical order:
““SFAS 158” means Statement of Financial Accounting Standards No. 158,
“Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans, an
amendment of FASB Statements No. 87, 88, 106 and 132(R),” issued by the Financial
Accounting Standards Board of the Financial Accounting Foundation in September 2006,
as amended by subsequent pronouncements, if applicable.”
(b) Article I of the Credit Agreement is hereby further amended by deleting in its
entirety the definition of “Adjusted Consolidated Net Worth” and replacing such
definition with the following:
““Adjusted Consolidated Net Worth” means (a) at any date prior to
December 31, 2006, the total consolidated shareholders’ equity of the Borrower
determined as of such date in accordance with GAAP, adjusted to exclude (i) any
minimum pension liability adjustment recorded in accordance with SFAS 87 and (ii) any
net unrealized capital gains and losses and (b) at any date on or after December 31,
2006, the total consolidated shareholders’ equity of the Borrower determined as of
such date in accordance with GAAP, adjusted to exclude (i) any adjustment recorded to
reflect the overfunded or underfunded status of the Borrower’s defined benefit
pension and other postretirement plans in accordance with SFAS 158 and (ii) any net
unrealized capital gains and losses.”
SECTION 3. Representations and Warranties. The Borrower represents and warrants to
the Administrative Agent and each Lender that as of the Amendment Effective Date and immediately
after giving effect to this Amendment:
(a) the representations and warranties of the Borrower set forth in Article IV of
the Credit Agreement are true in all material respects, with the same effect as if made
on and as of the Amendment Effective Date; provided, that, solely for the
purposes of this paragraph, (i) the date referred to in each of Sections 4.04(a)(i) and
4.04(b) of the Credit Agreement shall be deemed to be December 31, 2005, (ii) the dates
referred to in Section 4.04(a)(ii) of the Credit Agreement shall be deemed to be (A)
Xxxxx 00, 0000, (X) June 30, 2006 and (C) September 30, 2006, (iii) clause (b) of the
definition of “Disclosure Documents” in the Credit Agreement shall be deemed to refer to
the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005,
(iv) clause (c) of such definition shall be deemed to refer to the Borrower’s Quarterly
Reports on Form 10-Q for the quarterly periods ended (A) Xxxxx 00, 0000, (X) June 30,
2006 and (C) September 30, 2006 and (v) clause (d) of such definition shall be deemed to
refer to the Borrower’s Current Reports on Form 8-K, if any, filed or furnished prior to
the Amendment Effective Date.
(b) this Amendment has been duly authorized, executed and delivered by the
Borrower, and each of this Amendment and the Credit Agreement as amended hereby
constitutes a legal, valid and binding agreement of the Borrower, enforceable in
accordance with its terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights
generally and by general principles of equity, regardless of whether considered in a
proceeding in equity or law; and
(c) no Default or Event of Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall become effective as of
the date of this Amendment (the “Amendment Effective Date”) when and only if the
Administrative Agent shall have received duly executed counterparts hereof which, when taken
together, bear the authorized signatures of (a) the Borrower and (b) Lenders constituting the
Required Lenders.
The Administrative Agent shall notify the Borrower and the Lenders of the Amendment Effective
Date and such notice shall be conclusive and binding.
SECTION 5. No Other Amendments; Confirmation. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights and remedies of the Lenders or the Administrative Agent under, the
Credit Agreement, and shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which
are ratified and affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement in similar or different circumstances. This Amendment shall
apply and be effective only with respect to the provisions of the Credit Agreement specifically
referred to herein. The representations, warranties and agreements contained herein shall for all
purposes of the Credit Agreement be deemed to be set forth in the Credit Agreement.
SECTION 6. Headings. The Section headings used herein are for convenience of
reference only, are not part of this Amendment and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original but
all of which, when taken together, shall constitute a single agreement. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy or other electronic transmission
shall be effective as delivery of a manually executed counterpart hereof.
SECTION 9. Expenses. The Borrower agrees to reimburse the Administrative Agent for
its reasonable out-of-pocket expenses in connection with the preparation and administration of this
Amendment, including the reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP.
[signatures follow]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed by
their respective authorized officers as of the date first written above.
| AETNA INC., as Borrower, |
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by: |
/s/ Xxxxxx X. Xxxxx, Xx.
|
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| Title: Vice President, Finance and Treasurer | ||||
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, Issuing Bank and Lender, |
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by: |
/s/ Xxxx Xxx Xxx
|
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| Title: Vice President | ||||
| SIGNATURE PAGE TO FIRST AMENDMENT DATED AS OF DECEMBER 13, 2006 TO THE AETNA INC. AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT DATED AS OF JANUARY 20, 2006 | ||||
| LENDER: BANK OF AMERICA, N.A | ||||
by: Name: |
/s/ Xxxxxx X. Xxxxx
|
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Title:
|
Senior Vice President | |||
| LENDER: THE BANK OF NEW YORK | ||||
by: Name: |
/s/ Xxxx Xxxxx
|
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Title:
|
Vice President | |||
| LENDER: THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. NEW YORK BRANCH | ||||
by: Name: |
/s/ Xxxxx X Xxxx, Xx.
|
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Title:
|
Authorized Signatory | |||
| LENDER: BARCLAYS BANK PLC | ||||
by: Name: |
/s/ Xxxxxxxx Xxxx
|
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Title:
|
Director | |||
| LENDER: CITIBANK N.A. | ||||
by: Name: |
/s/ Xxxxx Xxxxxxx
|
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Title:
|
Managing Director | |||
| LENDER: CREDIT SUISSE Cayman Islands Branch |
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by: Name: |
/s/ Xxxxx Xx
|
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Title:
|
Director | |||
by: Name: |
/s/ Xxxxx Xxxxxxxx
|
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Title:
|
Associate | |||
| LENDER: DEUTSCHE BANK AG NEW YORK BRANCH | ||||
by: Name: |
/s/ Xxxx X. Xxx
|
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Title:
|
Vice President | |||
by: Name: |
/s/ Xxxxxxx Xxxx
|
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Title:
|
Vice President | |||
| LENDER: FIFTH THIRD BANK | ||||
by: Name: |
/s/ Xxxxxx Xxxxxx
|
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Title:
|
Assistant Vice President | |||
| LENDER: LASALLE BANK NATIONAL ASSOCIATION | ||||
by: Name: |
/s/ Xxxxxx X. Xxxxx
|
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Title:
|
Senior Vice President | |||
| LENDER: NATIONAL CITY BANK | ||||
by: Name: |
/s/ Xxxxxxxx X. Xxxx
|
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Title:
|
Vice President | |||
| LENDER: PNC BANK, NATIONAL ASSOCIATION | ||||
by: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
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Title:
|
Managing Director | |||
| LENDER: STATE STREET BANK AND TRUST COMPANY | ||||
by: Name: |
/s/ Xxxx Xxxx Xxxxxxxxx
|
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Title:
|
Vice President | |||
| LENDER: THE ROYAL BANK OF SCOTLAND PLC BY: GREENWICH CAPITAL MARKETS INC, AS AGENT |
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by: Name: |
/s/ Xxxxxx X. Xxxxx
|
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Title:
|
Vice President | |||
| LENDER: UBS LOAN FINANCE LLC | ||||
by: Name: |
/s/ Trja R. Otsa
|
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Title:
|
Associate Director | |||
by: Name: |
/s/ Xxxxx X. Xxxxxx
|
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Title:
|
Associate Director Banking Product Services US | |||
| LENDER: U.S. BANK NATIONAL ASSOCIATION | ||||
by: Name: |
/s/ Xxxx X. Xxxx
|
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Title:
|
Assistant Vice President | |||
| LENDER: WACHOVIA BANK, NATIONAL ASSOCIATION | ||||
by: Name: |
/s/ Xxxxx Xxxxxxxx
|
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Title:
|
Assistant Vice President | |||
| LENDER: XXXXXXX BANK | ||||
by: Name: |
/s/ Xxxxxxxx Xxxxx
|
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Title:
|
Vice President | |||
| LENDER: XXXXXXX STREET COMMITMENT CORPORATION (RECOURSE ONLY TO THE ASSETS OF XXXXXXX STREET COMMITMENT CORPORATION |
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by: Name: |
/s/ Xxxx Xxxxxx
|
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Title:
|
Assistant Vice President | |||
| LENDER: XXXXXX XXXXXXX BANK | ||||
by: Name: |
/s/ Xxxxxx Xxxxxx
|
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Title:
|
Vice President | |||
