Exhibit 10.16
FIRST AMENDMENT
to
$1,000,000,000
CREDIT AGREEMENT
dated as of
August 3, 2000
among
Xxxx Xxxxxxx Financial Services, Inc.
Xxxx Xxxxxxx Life Insurance Company,
The Banks Listed Herein,
Fleet National Bank,
as Co-Administrative Agent,
The Chase Manhattan Bank,
as Co-Administrative Agent,
Citicorp USA, Inc.,
as Syndication Agent,
The Bank of New York,
as Co-Documentation Agent (364-Day Revolver),
The Bank of Nova Scotia,
as Co-Documentation Agent (364-Day Revolver),
and
BankOne, NA
(Main Office Chicago),
as Documentation Agent (Multi-Year Revolver)
Fleet Securities, Inc.,
and
X.X. Xxxxxx Securities, Inc.
as
Joint Book Managers and Joint Lead Arrangers
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") dated as of
July 27, 2001, 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 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 ("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 have requested that the Banks make certain
amendments to the 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 this First
Amendment, (iii) to reallocate the 364-Day Commitment of BankOne, NA (Main
Office Chicago) (the "Exiting Bank"), (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; and
WHEREAS, the Banks are willing to make such amendments on the terms and
conditions set forth in this First 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 as such terms have in the Credit Agreement.
2. Termination of JHCC as a Borrower. The parties hereto acknowledge that
(i) no Loans are outstanding to JHCC as of the First Amendment Effective Date
(as defined below), and (ii) JHCC is being terminated as a Borrower under the
Credit Agreement as of such date pursuant to a JHCC Termination Notice that
complies with Section 9.09 of the Credit Agreement, a copy of which is attached
hereto as Exhibit 1. From and after the First Amendment Effective Date, the
Banks shall have no further commitments to make Loans to JHCC and JHCC shall
have no further rights or obligations as a Borrower under the Credit Agreement.
The parties further acknowledge and agree that, from and after the First
Amendment Effective Date, all representations, warranties, covenants, and other
terms and conditions concerning JHCC, the JHCC Termination Notice, the Company
Assumption Agreement, the Guarantee Agreement, and the Support Agreement in the
Credit Agreement and the Exhibits thereto shall have no further force and effect
and shall be disregarded. Without limiting the foregoing, Section 3.02(e),
Section 4.05(b), the second sentence of Section 4.11, Section 5.01(b), Section
5.01(d), Section 5.11, Section 5.13, Section 6.01(g), Section 6.01(h), Section
6.01(o), Section 6.01(p), and Section 6.01(q) of the Credit Agreement are hereby
deleted in their entirety without substitution therefor.
3. Eligibility of JHFS as a Borrower. The parties hereto acknowledge that
JHFS is a Borrower and an Eligible Borrower, as those terms are defined in the
Credit Agreement, because it has received public commercial paper ratings from
both S&P and Xxxxx'x of at least A-1 and P-1, respectively, and it has delivered
to the Agent resolutions of its Board of Directors specifically authorizing it
to enter into the Credit Agreement and to make Borrowings thereunder.
4. Amendments to Credit Agreement. Upon the terms and subject to the
conditions of this First Amendment, the Credit Agreement is hereby amended in
each of the following respects:
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(a) The definition of "Expiration" in Section 1.01 of the Credit
Agreement is amended to read in its entirety as follows:
""Expiration" means, with respect to the 364-Day Revolver, the
364th day after the First Amendment Effective Date or, if extended in
accordance with Section 2.06(b), the 364th day after the immediately
preceding Expiration."
(b) The definition of "Level I Rating" in Section 1.01 of the Credit
Agreement is amended to read in its entirety as follows:
""Level I Rating" means, with respect to any Borrower, (a)
with respect to the 364-Day Revolver, a senior unsecured long-term debt
rating of at least AAA from S&P or at least Aaa from Xxxxx'x, and (b) with
respect to the Multi-Year Revolver, (i) if S&P and/or Xxxxx'x has assigned
a rating to the senior unsecured long-term debt of such Borrower, then a
rating of at least AAA from S&P or at least Aaa from Xxxxx'x, or (ii) if
neither S&P nor Xxxxx'x has assigned a rating to the senior unsecured
long-term debt of such Borrower, then public commercial paper ratings of
A-1+ from S&P or P-1 from Xxxxx'x."
(c) The definition of "Level II Rating" in Section 1.01 of the
Credit Agreement is amended to read in its entirety as follows:
""Level II Rating" means, with respect to any Borrower, (a)
with respect to the 364-Day Revolver, a senior unsecured long-term debt
rating of at least AA- from S&P or at least Aa3 from Xxxxx'x, and (b) with
respect to the Multi-Year Revolver, (i) if S&P and/or Xxxxx'x has assigned
a rating to the senior unsecured long-term debt of such Borrower, then a
rating of at least AA- from S&P or at least Aa3 from Xxxxx'x, or (ii) if
neither S&P nor Xxxxx'x has assigned a rating to the senior unsecured
long-term debt of such Borrower, then public commercial paper ratings of
A-1 from S&P or P-1 from Xxxxx'x."
(d) The definition of "Level III Rating" in Section 1.01 of the
Credit Agreement is amended to read in its entirety as follows:
""Level III Rating" means, with respect to any Borrower, (a)
with respect to the 364-Day Revolver, a senior unsecured long-term debt
rating of at least A+ from S&P or at least A1 from Xxxxx'x, and (b) with
respect to the Multi-Year Revolver, (i) if S&P and/or Xxxxx'x has assigned
a rating to the senior unsecured long-term debt of such Borrower, then a
rating of at least A+ from S&P or at least A1 from Xxxxx'x, or (ii) if
neither S&P nor Xxxxx'x has assigned a rating to the senior unsecured
long-term debt of such Borrower, then public commercial paper ratings of
A-2 from S&P or P-2 from Xxxxx'x."
(e) The definition of "Level IV Rating" in Section 1.01 of the
Credit Agreement is amended to read in its entirety as follows:
""Level IV Rating" means, with respect to any Borrower, (a)
with respect to the 364-Day Revolver, senior unsecured long-term debt
ratings (if assigned) of below A+ from S&P and below A1 from Xxxxx'x, and
(b) with respect to the Multi-Year Revolver, (i) if S&P and/or Xxxxx'x has
assigned a rating to the senior unsecured long-term debt of such Borrower,
then ratings (if assigned) of below A+ from S&P and below A1 from Xxxxx'x,
or (ii) if neither S&P nor Xxxxx'x has assigned a rating to the senior
unsecured long-term debt of such Borrower, then public commercial paper
ratings of less than A-2 from S&P and less than P-2 from Xxxxx'x."
(f) The definition of "364-Day Termination Date" in Section 1.01 of
the Credit Agreement is amended to read in its entirety as follows:
""364-Day Termination Date" means the 364th day after the
First Amendment Effective Date, or 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."
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(g) Section 1.01 of the Credit Agreement is amended by inserting the
following new definitions:
""First Amendment" means the First Amendment to Credit
Agreement dated as of July 27, 2001."
""First Amendment Effective Date" means the date on which the
First Amendment becomes effective in accordance with Section 7 thereof."
(h) Section 5.01(e) of the Credit Agreement is amended to read in
its entirety as follows:
"(e) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (c) above, a certificate of a
Senior Financial Officer of JHLIC (i) setting forth in reasonable detail
the calculations required to establish whether JHLIC was in compliance
with the requirements of Section 5.08 on the date of such financial
statements and (ii) stating whether to his or her knowledge any Default
exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which JHLIC is taking or
proposes to take with respect thereto;"
(i) Section 5.01 of the Credit Agreement is amended by inserting the
following new subsection (n):
"(n) simultaneously with the delivery of each set of financial
statements referred to in clauses (f), (g) and (h) above, a certificate of
a Senior Financial Officer of JHFS (i) setting forth in reasonable detail
the calculations required to establish whether JHFS was in compliance with
the requirements of Sections 5.08A and 5.09 on the date of such financial
statements and (ii) stating whether to his or her knowledge any Default
exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which JHFS is taking or
proposes to take with respect thereto."
(j) Exhibit L to the Credit Agreement is amended to read in its
entirety as set forth in Exhibit L attached hereto.
5. 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 First Amendment
Effective Date.
6. Amendments to 364-Day Commitments. The 364-Day Commitment of the
Exiting Bank under the 364-Day Revolver is hereby terminated as of the First
Amendment Effective Date, and the Exiting Bank is hereby released from its
obligations under the Credit Agreement with respect to the 364-Day Revolver (but
not with respect to the Multi-Year Revolver) as of the First Amendment Effective
Date. From and after the First 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." From and after the First Amendment
Effective Date, The Bank of New York and The Bank of Nova Scotia shall replace
the Exiting Bank as Documentation Agent with respect to the 364-Day Revolver and
shall serve as Co-Documentation Agents.
7. Conditions Precedent. The amendments and agreements set forth in
Sections 2, 3, 4, 5 and 6 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 (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 or other written confirmation
from such party of the execution and delivery of a counterpart hereof by
such party);
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(b) receipt by the Agent of a JHCC Termination Notice signed by the
Borrowers and JHCC, which notice complies with Section 9.09 of the Credit
Agreement and is substantially in the form of Exhibit G thereto;
(c) receipt by the Agent of the 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 the 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);
(d) the fact that all amounts payable by the Borrowers on or before
the First Amendment Effective Date (including the fees then payable, if
any, pursuant to Section 2.08 of the Credit Agreement) shall have been
paid in full;
(e) receipt by the Agent of an opinion of Xxxx X. Xxxxxxxx, Vice
President and Counsel of JHLIC, in form and substance satisfactory to the
Agent;
(f) receipt by the Agent of an opinion of Goulston & Storrs, P.C.,
special counsel for the Agent, in form and substance satisfactory to the
Agent; and
(g) 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 First Amendment, and any other matters relevant
hereto, all in form and substance satisfactory to the Agent;
provided that this First Amendment shall not become effective or be binding on
any party hereto unless all of the foregoing conditions are satisfied not later
than July 27, 2001. At the closing, the Agent or its counsel shall deliver a
notice to the Borrowers and the Banks advising them of the First Amendment
Effective Date, and such notice shall be conclusive and binding on all parties
hereto.
8. Representations and Warranties. Each Borrower severally represents and
warrants, but only with respect to itself, that:
(a) Representations in Credit Agreement. Each of the representations
and warranties made by such Borrower in the 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 First 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 First Amendment (after giving effect to all of
the arrangements and transactions contemplated by this First Amendment).
(c) Binding Effect of Documents. This First 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.
9. Miscellaneous. This First 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 First 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 Credit Agreement and the Notes shall
remain unmodified, and the Credit Agreement and the Notes, as amended and
supplemented by this First Amendment, are
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confirmed as being in full force and effect, and each Borrower hereby ratifies
and confirms all of its agreements and obligations contained therein. This First
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 First
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 First 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: __________________________ Title: __________________________
By: _____________________________ By: _____________________________
Title: __________________________ Title: __________________________
000 Xxxxxxxxx Xxxxxx, T-58 000 Xxxxxxxxx Xxxxxx, X-00
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer Attention: Treasurer
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
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364-Day Multi-Year
Commitments Commitments
----------- -----------
$32,500,000 $40,000,000 FLEET NATIONAL BANK
("Co-Administrative Agent")
By:________________________
Title:_____________________
$32,500,000 $40,000,000 THE CHASE MANHATTAN BANK
("Co-Administrative Agent")
By:________________________
Title:_____________________
$32,500,000 $40,000,000 CITICORP USA, INC.
("Syndication Agent")
By:________________________
Title:_____________________
$32,500,000 $30,312,500 THE BANK OF NOVA SCOTIA
("Co-Documentation Agent"
- 364-Day)
By:________________________
Title:_____________________
$32,500,000 $10,000,000 THE BANK OF NEW YORK
("Co-Documentation Agent"
- 364-Day)
By:________________________
Title:_____________________
$0 $40,000,000 BANKONE, NA
(MAIN OFFICE CHICAGO)
("Documentation Agent"
- Multi-Year)
By:________________________
Title:_____________________
$28,000,000 $30,312,500 BARCLAYS BANK PLC
By:________________________
Title:_____________________
8
364-Day Multi-Year
Commitments Commitments
----------- -----------
$28,000,000 $30,312,500 BNP PARIBAS
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$28,000,000 $30,312,500 CREDIT SUISSE FIRST BOSTON
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$28,000,000 $30,312,500 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$28,000,000 $30,312,500 ROYAL BANK OF CANADA
By:________________________
Title:_____________________
$28,000,000 $30,312,500 WACHOVIA BANK, N.A.
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$24,500,000 $30,312,500 COMERICA BANK
By:________________________
Title:_____________________
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364-Day Multi-Year
Commitments Commitments
----------- -----------
$24,500,000 $22,500,000 STATE STREET BANK AND TRUST
COMPANY
By:________________________
Title:_____________________
$24,500,000 $22,500,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$22,500,000 $22,500,000 BANK OF AMERICA, N.A.
By:________________________
Title:_____________________
$24,500,000 $20,000,000 THE NORTHERN TRUST COMPANY
By:________________________
Title:_____________________
$24,500,000 $0 ABN AMRO BANK N.V.
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$24,500,000 $0 XXXXXX COMMERCIAL PAPER INC.
By:________________________
Title:_____________________
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Total 364-Day Total Multi-Year
Commitments Commitments
------------ -------------
$500,000,000 $500,000,000
FLEET NATIONAL BANK, as Agent
By:_____________________
Title: Managing Director, Financial
Institutions Division
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
THE CHASE MANHATTAN BANK, as Agent
By:_____________________
Title: Vice President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
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EXHIBIT L
Senior Unsecured Long Term Debt Ratings - 364-Day Revolver
--------------------------------------------------------------------------------------------------------------------------
Applicable Drawn Cost Applicable
S & P or Xxxxx'x Facility Euro-Dollar (<50% usage) Usage All-In
Rating Level Rating Fee (bps.) Margin (bps.) (bps.) Fee (bps.) Drawn Cost
--------------------------------------------------------------------------------------------------------------------------
I =>AAA/=>Aaa 4.0 13.5 17.5 5.0 22.5
--------------------------------------------------------------------------------------------------------------------------
II =>AA-/=>Aa3 5.0 15.0 20.0 5.0 25.0
--------------------------------------------------------------------------------------------------------------------------
III =>A+/=>A1 6.0 19.0 25.0 5.0 30.0
--------------------------------------------------------------------------------------------------------------------------
IV AAA/=>Aaa 6.0 11.5 17.5 5.0 22.5
--------------------------------------------------------------------------------------------------------------------------
II =>AA-/=>Aa3 7.0 13.0 20.0 5.0 25.0
--------------------------------------------------------------------------------------------------------------------------
III =>A+/=>A1 8.0 17.0 25.0 5.0 30.0
--------------------------------------------------------------------------------------------------------------------------
IV
