EX-10.84 2 a04-4364_1ex10d84.htm EX-10.84

Exhibit 10.84

 

THIRD AMENDMENT TO 364-DAY CREDIT AGREEMENT

 

THIS THIRD AMENDMENT TO 364-DAY CREDIT AGREEMENT (this “Amendment”), dated as of March 26, 2004, is entered into among WELLPOINT HEALTH NETWORKS INC., a Delaware corporation (the “Borrower”), the Lenders identified on the signature pages hereto as the existing Lenders (the “Existing Lenders”), the Lenders identified on the signature pages hereto as the new Lenders (the “New Lenders”), BANK OF AMERICA, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and JPMORGAN CHASE BANK, as syndication agent (in such capacity, the “Syndication Agent”).  Terms used but not otherwise defined herein shall have the meanings provided in the Existing Credit Agreement described below.

 

W I T N E S S E T H

 

WHEREAS, the Borrower, the Lenders party thereto, the Administrative Agent and the Syndication Agent entered into that certain Credit Agreement, dated as of March 30, 2001, as amended by that certain First Amendment to 364-Day Credit Agreement, dated as of March 29, 2002, as amended by that certain Second Amendment to 364-Day Credit Agreement, dated as of March 28, 2003 (the “Existing Credit Agreement”);

 

WHEREAS, the Borrower has requested to extend the Commitment Termination Date for an additional 364 day period, and the Existing Lenders have agreed to extend their respective Commitments and amend the Existing Credit Agreement in accordance with such request and as provided herein; and

 

WHEREAS, the Borrower, the Existing Lenders and the New Lenders have agreed that the New Lenders shall become parties to the Existing Credit Agreement (as amended hereby).

 

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

PART I

DEFINITIONS

 

SUBPART 1.1  Certain Definitions.  Unless otherwise defined herein or the context otherwise requires, the following terms used in this Amendment, including its preamble and recitals, have the following meanings:

 

“Amended Credit Agreement” means the Existing Credit Agreement as amended hereby.

 

“Amendment No. 3 Effective Date” is defined in Subpart 3.1.

 

SUBPART 1.2  Other Definitions.  Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals, have the meanings provided in the Existing Credit Agreement.

 

 

PART II

AMENDMENTS TO EXISTING CREDIT AGREEMENT

 

Effective on (and subject to the occurrence of) the Amendment No. 3 Effective Date, the Existing Credit Agreement is hereby amended in accordance with this Part II.

 

SUBPART 2.1  Amendments to Section 1.01.  The definition of “Commitment Termination Date” is hereby amended in its entirety to read as follows:

 

“Commitment Termination Date” shall mean the date 364 days following March 26, 2004.

 

SUBPART 2.2  Amendments to Schedule 2.01.  Schedule 2.01 of the Existing Credit Agreement is hereby replaced with Schedule 2.01 attached hereto.

 

PART III

CONDITIONS TO EFFECTIVENESS

 

SUBPART 3.1  Amendment No. 3 Effective Date.  This Amendment shall be and become effective as of the date hereof (the “Amendment No. 3 Effective Date”) when all of the conditions set forth in this Part III shall have been satisfied, and thereafter this Amendment shall be known, and may be referred to, as the “Amendment”.

 

SUBPART 3.2   Execution of Counterparts of Amendment.  The Administrative Agent shall have received counterparts of this Amendment, which collectively shall have been duly executed on behalf of each of the Borrower, the Existing Lenders, the New Lenders, the Administrative Agent and the Syndication Agent.

 

SUBPART 3.3  Fees and Expenses.  The Borrower has paid all fees and expenses incurred in connection with the negotiation, preparation, execution and delivery of this Amendment and the other transactions contemplated herein including, without limitation, the legal fees and expenses of Moore & Van Allen, counsel to the Administrative Agent.

 

SUBPART 3.4  Other Items.  The Administrative Agent shall have received such other documents, agreements or information that may be reasonably requested by the Administrative Agent.

 

PART IV

JOINDER OF NEW LENDERS

 

From and after the Amendment No. 3 Effective Date, each of the New Lenders shall be a party to and be bound by the provisions of the Existing Credit Agreement (as amended hereby) and shall have the rights and obligations of a Lender thereunder.

 

Each New Lender (i) confirms that it has received a copy of the Existing Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to

 

 

make its own credit decisions in taking or not taking action under the Existing Credit Agreement (as amended hereby); (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Existing Credit Agreement (as amended hereby) as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (iv) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Existing Credit Agreement (as amended hereby) are required to be performed by it as a Lender; and (v) which is not a United States person shall have attached all forms required under Section 2.18(e) of the Existing Credit Agreement.

 

PART V

MISCELLANEOUS

 

SUBPART 5.1  Representations and Warranties.  The Borrower hereby represents and warrants to the Administrative Agent, the Existing Lenders and the New Lenders that, after giving effect to this Amendment, (a) no Default or Event of Default exists under the Amended Credit Agreement and (b) the representations and warranties set forth in Article III of the Existing Credit Agreement are, subject to the limitations set forth therein, true and correct in all material respects as of the date hereof (except for those which expressly relate to an earlier date).

 

SUBPART 5.2  Reaffirmation of obligations.  The Borrower hereby ratifies the Existing Credit Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Existing Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance of its respective obligations under the Existing Credit Agreement.

 

SUBPART 5.3  Cross-References.  References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.

 

SUBPART 5.4  Instrument Pursuant to Existing Credit Agreement.  This Amendment is executed pursuant to the Existing Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Existing Credit Agreement.

 

SUBPART 5.5  References in Other Credit Documents.  At such time as this Amendment shall become effective pursuant to the terms of Subpart 3.1, all references to the “Credit Agreement” in the Existing Credit Agreement shall be deemed to refer to the Existing Credit Agreement as amended by this Amendment.

 

SUBPART 5.6  Counterparts/Telecopy.  This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.  Delivery of executed counterparts of the Amendment by telecopy shall be effective as an original and shall constitute a representation that an original shall be delivered.

 

SUBPART 5.7  Governing Law.  THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).

 

 

SUBPART 5.8  Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

SUBPART 5.9  General.  Except as amended hereby, the Existing Credit Agreement and all other Credit Documents shall continue in full force and effect.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to 364-Day Credit Agreement as of the date first above written.

 

BORROWER:

WELLPOINT HEALTH NETWORKS INC.,
a Delaware corporation

 

 

 

By:

 

/s/ R. David Kretschmer

 

 

Name:

 

R. David Kretschmer

 

 

Title:

 

Vice President and Treasurer

 

 

 

 

ADMINISTRATIVE AGENT:

 

BANK OF AMERICA, N.A.

 

 

 

By:

 

/s/ Kevin L. Ahart

 

 

Name:

 

Kevin L. Ahart

 

 

Title:

 

Assistant Vice President

 

 

 

 

SYNDICATION AGENT:

JPMORGAN CHASE BANK

 

 

 

By:

 

/s/ James S. Ely III

 

 

Name:

 

James S. Ely III

 

 

Title:

 

Managing Director

 

 

 

EXISTING LENDERS:

BANK OF AMERICA, N.A.

 

 

 

 

 

By:

 

/s/ Joseph L. Corah

 

 

Joseph L. Corah

 

Principal

 

 

[signature pages continue]

 

 

 

BANK ONE, N.A.

 

 

 

 

 

By:

 

/s/ Vincent K. Kelly

 

 

Name:

Vincent K. Kelly

 

Title:

Managing Director

 

 

[signature pages continue]

 

 

 

JPMORGAN CHASE BANK

 

 

 

 

 

By:

 

/s/ James S. Ely III

 

 

Name:

James S. Ely III

 

Title:

Managing Director

 

 

[signature pages continue]

 

 

 

CITICORP USA, INC.

 

 

 

 

 

By:

 

/s/ Peter C. Bickford

 

 

Name:

Peter C. Bickford

 

Title:

Vice President

 

 

[signature pages continue]

 

 

 

MELLON BANK, N.A.

 

 

 

 

 

By:

 

Marsha Wicker

 

 

Name:

Marsha Wicker

 

Title:

VP

 

 

[signature pages continue]

 

 

 

CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH

 

 

 

 

 

By:

 

/s/ Paul L. Colon

 

 

Name:

Paul L. Colon

 

Title:

Director

 

 

 

 

 

 

 

By:

 

/s/ Jennifer A. Pieza

 

 

Name:

Jennifer A. Pieza

 

Title:

Associate

 

 

[signature pages continue]

 

 

 

THE BANK OF NEW YORK

 

 

 

 

 

By:

 

/s/ Rebecca K. Levine

 

 

Name:

Recebba K. Levine

 

Title:

Vice President

 

 

[signature pages continue]

 

 

 

SUNTRUST BANK

 

 

 

 

 

By:

 

/s/ W. Brooks Hubbard

 

 

Name:

W. Brooks Hubbard

 

Title:

Director

 

 

[signature pages continue]

 

 

 

DEUTSCHE BANK AG NEW YORK BRANCH

 

 

 

 

 

By:

 

/s/ Ruth Leung

 

 

Name:

Ruth Leung

 

Title:

Director

 

 

 

 

 

By:

 

/s/ Charles Kohler

 

 

Name:

Charles Kohler

 

Title:

Managing Director

 

 

[signature pages continue]

 

 

 

LEHMAN BROTHERS BANK, FSB

 

 

 

 

 

By:

 

/s/ Gary T. Taylor

 

 

Name:

Gary T. Taylor

 

Title:

Vice President

 

 

[signature pages continue]

 

 

 

WACHOVIA BANK, NATIONAL
ASSOCIATION

 

 

 

 

 

By:

 

/s/ Kimberly Shaffer

 

 

Name:

Kimberly Shaffer

 

Title:

Director

 

 

[signature pages continue]

 

 

 

BNP PARIBAS

 

 

 

 

 

By:

 

/s/ C. Bettles

 

 

Name:

C. Bettles

 

Title:

Managing Director

 

 

 

 

 

By:

 

/s/ Janice S. H. Ho

 

 

Name:

Janice S. H. Ho

 

Title:

Director

 

 

[signature pages continue]

 

 

 

SUMITOMO MITSUI BANKING
CORPORATION

 

 

 

 

 

By:

 

/s/ Al Galluzzo

 

 

Name:

Al Galluzzo

 

Title:

Senior Vice President

 

 

[signature pages continue]

 

 

 

SOCIETE GENERALE

 

 

 

 

 

By:

 

/s/ David Grant

 

 

Name:

David Grant

 

Title:

Managing Director

 

 

[signature pages continue]

 

 

 

BANCA DI ROMA

 

 

 

 

 

By:

 

/s/ Richard G. Dietz

 

 

Name:

Richard G. Dietz (#97271)

 

Title:

Vice President

 

 

 

 

 

By:

 

/s/ Luca Balestra

 

 

Name:

Luca Balestra (#25050)

 

Title:

Senior Vice President and Manager

 

 

 

THE BANK OF TOKYO-MITSUBISHI LTD.,
SEATTLE BRANCH

 

 

 

 

 

By:

 

/s/ Junji Ban

 

 

Name:

Junji Ban

 

Title:

General Manager

 

 

[signature pages continue]

 

 

 

WELLS FARGO BANK

 

 

 

 

 

By:

 

/s/ Lucy Nixon

 

 

Name:

Lucy Nixon

 

Title:

Senior Vice President

 

 

[signature pages continue]

 

 

 

U.S. BANK, NATIONAL ASSOCIATION

 

 

 

 

 

By:

 

/s/ L. Alec Blanc III

 

 

Name:

L. Alec Blanc III

 

Title:

Senior Vice President

 

 

[signature pages continue]

 

 

NEW LENDERS:

CREDIT LYONNAIS NEW YORK BRANCH

 

 

 

 

 

By:

 

/s/ Charles Heidsieck

 

 

Name:

Charles Heidsieck

 

 

Title:

Senior Vice President

 

 

 

[signature pages continue]

 

 

 

UBS LOAN FINANCE LLC

 

 

 

 

 

By:

 

/s/ Wilfred V. Saint

 

 

Wilfred V. Saint

 

Director

 

Banking Products Services US

 

 

 

 

 

By:

 

/s/ Joselin Fernandes

 

 

Joselin Fernandes

 

Associate Director

 

Banking Products Services US

 

 

SCHEDULE 2.01

 

COMMITMENTS

(364-Day Credit Agreement)

 

Lender

 

Commitment Amount

 

Commitment Percentage

 

Bank of America, N.A.

 

$

17,500,000

 

7.000000000

%

JPMorgan Chase Bank

 

$

17,500,000

 

7.000000000

%

Bank One, N.A.

 

$

15,000,000

 

6.000000000

%

Citicorp USA, Inc.

 

$

15,000,000

 

6.000000000

%

Mellon Bank, N.A.

 

$

12,500,000

 

5.000000000

%

Credit Suisse First Boston

 

$

13,312,500

 

5.325000000

%

The Bank of New York

 

$

12,500,000

 

5.000000000

%

SunTrust Bank

 

$

17,500,000

 

7.000000000

%

UBS Loan Finance LLC

 

$

13,312,500

 

5.325000000

%

Deutsche Bank AG New York Branch

 

$

13,250,000

 

5.300000000

%

Lehman Brothers Bank, FSB

 

$

13,250,000

 

5.300000000

%

Wachovia Bank, National Association

 

$

12,500,000

 

5.000000000

%

BNP Paribas

 

$

19,375,000

 

7.750000000

%

Sumitomo Mitsui Banking Corporation

 

$

10,000,000

 

4.000000000

%

Societe Generale

 

$

10,000,000

 

4.000000000

%

Banca Di Roma

 

$

6,250,000

 

2.500000000

%

The Bank of Tokyo-Mitsubishi, Ltd., Seattle Branch

 

$

6,250,000

 

2.500000000

%

U.S. Bank, National Association

 

$

15,000,000

 

6.000000000

%

Wells Fargo Bank

 

$

5,000,000

 

2.000000000

%

Credit Lyonnais New York Branch

 

$

5,000,000

 

2.000000000

%

 

 

 

 

 

 

Total:

 

$

250,000,000.00

 

100.000000000

%