EXHIBIT 4.12(iii)
EXECUTION COPY
SECOND EXTENSION AGREEMENT dated as
of August 30, 2004 (this “ Second Extension Agreement
”), to the Amended and Restated 364-Day Credit Agreement
dated as of July 1, 2003 (the “ Credit Agreement
”), among ANTHEM, INC., an Indiana corporation (the “
Company ”); the LENDERS party thereto; JPMORGAN CHASE
BANK, as Administrative Agent; BANK OF AMERICA, N.A. and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Syndication Agents; and FLEET
NATIONAL BANK and WILLIAM STREET COMMITMENT CORPORATION, as
Documentation Agents.
A. Pursuant to the Credit Agreement,
the Lenders have extended and agreed to extend credit to the
Company from time to time during the Availability
Period.
B. The Company has requested the
Lenders to amend the Credit Agreement to extend the Termination
Date to June 28, 2005.
C. The Lenders whose signatures
appear below, which include the Required Lenders, are willing, on
the terms and subject to the conditions set forth herein, to extend
the Termination Date as requested by the Company.
D. The parties whose signatures
appear below as Lenders but who were not previously parties to the
Credit Agreement (the “ New Lenders ”) are
willing to become parties to the Credit Agreement as
Lenders.
E. Capitalized terms used and not
otherwise defined herein (including in the foregoing recitals) have
the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the
mutual agreements contained herein and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions . For
purposes of this Second Extension Agreement, the term “
Amendment Effectiveness Time ” means (a) if each of
the Lenders is a party hereto, 5:00 p.m. New York City time, on the
Second Extension Agreement Effectiveness Date (as defined below) or
(b) if the Lenders constituting the Required Lenders (but less than
all the Lenders) are party hereto, 5:00 p.m., New York City time,
on August 30, 2004, provided that, in the case of this
clause (b), the Company shall have paid in full to each of the
Lenders not a party hereto (each, a “ Non-Extending
Lender ”) the principal of and interest accrued on each
Loan made by it and all other amounts owing to it or accrued for
its account under the Credit Agreement.
SECTION 2. Amendment . At the
Amendment Effectiveness Time:
(a) Section 1.01 of the Credit
Agreement shall be amended by amending and restating the definition
of the term “Termination Date” in its entirety to read
as follows:
““ Termination
Date ” means June 28, 2005.”;
(b) Section 1.01 of the Credit
Agreement shall be amended by amending and restating the definition
of the term “Maturity Date” in its entirety to read as
follows:
““ Maturity Date
” means the Termination Date, unless the Maturity Date is
extended pursuant to Section 2.07(d), in which case the Maturity
Date shall mean June 28, 2006.”;
(c) the Commitment of each
Non-Extending Lender, if any, shall automatically terminate and
each such Lender shall be released from its obligations under the
Credit Agreement and shall cease to be a party thereto, but shall
continue to be entitled to the benefits of Sections 2.13, 2.14,
2.15 and 8.03 of the Credit Agreement as in effect immediately
prior to the Amendment Effectiveness Time;
(d) each New Lender shall become a
Lender under the Credit Agreement;
(e) Schedule 2.01 of the Credit
Agreement shall be amended and restated in its entirety in the form
of Exhibit A hereto;
(f) Section 2.07(d) of the Credit
Agreement shall be amended and restated in its entirety to read as
follows:
“(d) The Borrower may, at any
time not earlier than the 30th Business Day prior to the
Termination Date and not later than the 15th Business Day prior to
the Termination Date, deliver to the Administrative Agent written
notice requesting an extension of the Maturity Date, in which event
the Commitments shall terminate on the Termination Date and, so
long as no Default or Event of Default has occurred and is
continuing on the Termination Date, the Maturity Date for Revolving
Loans outstanding on the Termination Date shall be extended to June
28, 2006. Loans repaid or prepaid after the Termination Date may
not be reborrowed.”;
(g) Section 3.05 shall be amended
and restated in its entirety to read as follows:
“SECTION 3.05. Financial
Statements . The Borrower has heretofore furnished to the
Lenders (a) the December 31, 2003, audited consolidated financial
statements of AI and its subsidiaries, (b) the June 30, 2004,
unaudited consolidated financial statements of AI and its
subsidiaries, (c) the December 31, 2003, Annual Statement of AICI
and (d) the June 30, 2004, Quarterly Statement of AICI
(collectively, the “ Financial Statements ”).
Each of the Financial Statements was prepared in accordance with
GAAP or SAP, as applicable, and such Financial Statements fairly
present the consolidated financial condition of the Borrower and
the Subsidiaries at such dates and the consolidated results of
their operations for the respective periods then ended (except, in
the case of such unaudited statements, for normal year-end audit
adjustments).”; and (h) Section 3.06 shall be amended and
restated in its entirety as follows:
“SECTION 3.06. Material
Adverse Change . No material adverse change in the business,
Property, condition (financial or otherwise) or operations of AI,
or of AI and its subsidiaries taken as a whole, has occurred since
December 31, 2003.”
SECTION 3. Representations and
Warranties. To induce the other parties hereto to enter into
this Second Extension Agreement, the Company represents and
warrants to each of the Lenders and the Administrative Agent that
(a) this Second Extension Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against it in accordance with
its terms and (b) after giving effect to this Second Extension
Agreement, (i) the representations and warranties of the Company
set forth in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof
(except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and
warranties are true and correct in all material respects on and as
of such earlier date); and (ii) no Default or Event of Default has
occurred and is continuing.
SECTION 4. Effectiveness of this
Second Extension Agreement . This Second Extension Agreement
shall become effective as of the date set forth above on the date
(such date, the “ Second Extension Agreement Effectiveness
Date ”) that the Administrative Agent or its counsel
shall have received counterparts of this Second Extension Agreement
that, when taken together, bear the signatures of the Company, the
Administrative Agent and each of the Lenders party hereto
(including Lenders constituting the Required Lenders) and
provided that the Borrower shall have furnished the
following to the Administrative Agent:
(a) Articles of Incorporation,
By-Laws and Resolutions . Copies, certified by the Secretary or
Assistant Secretary of the Borrower, of its articles of
incorporation, its by-laws and of its Board of Directors’
resolutions authorizing the execution, delivery and performance of
this Second Extension Agreement and of the Credit Agreement as
amended hereby.
(b) Secretary’s
Certificate . An incumbency certificate, executed by the
Secretary or Assistant Secretary of the Borrower, which shall
identify by name and title and bear the signature of the officers
of the Borrower authorized to sign this Second Extension Agreement,
upon which certificate the Administrative Agent and the Lenders
shall be entitled to rely until informed in writing of any change
by the Borrower.
(c) Officer’s
Certificate . A certificate, dated the date of this Agreement,
signed by an Authorized Officer of the Borrower, in form and
substance satisfactory to the Administrative Agent, to the effect
that (i) on such date (both before and after giving effect to the
consummation of the Transactions that have been completed on or
prior to such date and the making of any Loans hereunder) no
Default or Event of Default has occurred and is continuing and (ii)
each of the representations and warranties set forth in Article III
of the Credit Agreement is true and correct in all material
respects on and as of such date.
(d) Legal Opinion . A written
opinion addressed to the Administrative Agent and the Lenders of
David R. Frick, Esq., Executive Vice President and Chief Legal and
Administrative Officer of AI, substantially in the form of Exhibit
B hereto.
(e) No Amounts Outstanding .
No Loans shall be outstanding under the Credit Agreement on the
Second Extension Agreement Effectiveness Date. The Administrative
Agent shall have received all facility fees, utilization fees and
interest accrued and unpaid prior to the Second Extension Agreement
Effective Date under the Credit Agreement.
(f) Payment of Fees . The
Borrower shall have paid all accrued and unpaid fees, costs,
expenses and other amounts to the extent due and payable under this
Second Extension Agreement or the Credit Agreement on or prior to
the execution of this Agreement, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to
be reimbursed or paid by the Borrower under the Credit Agreement.
The Borrower shall also have paid all fees, costs, expenses and
other amounts due and payable to J.P. Morgan Securities Inc. and
JPMorgan Chase Bank under the Commitment Letter agreement dated as
of August 27, 2004 among the Borrower, J.P. Morgan Securities Inc.
and JPMorgan Chase Bank.
(g) Other. Such other
documents as the Administrative Agent, any Lender or their counsel
may have reasonably requested.
SECTION 5. Effect of this Second
Extension Agreement . Except as expressly set forth herein,
this Second Extension Agreement 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, which is 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 Second
Extension Agreement shall apply and be effective only with respect
to the provisions of the Credit Agreement specifically referred to
herein.
SECTION 6. Counterparts. This
Second Extension Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same contract. Delivery of an executed
counterpart of a signature page of this Second Extension Agreement
by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
SECTION 7
