PLACEMENT AGENCY AGREEMENT
PLACEMENT AGENCY AGREEMENT dated as of February
20, 1996 between Humana Inc., a Delaware corporation (the
"Company"), and MERRILL LYNCH MONEY MARKETS INC., a
Delaware corporation ("Merrill Lynch").
W I T N E S S E T H:
WHEREAS, the Company has requested Merrill Lynch to act as
the agent of the Company for the private placement to accredited
investors of the Company's unsecured notes with maturities of up to 270
days from date of issue (the "Notes").
WHEREAS, the Notes will be represented by either individual
note certificates ("Certificated Notes") or a master note of the Company.
Individual Notes shall be issued substantially in the form of Exhibit A-1 or
A-2 hereto, while master notes shall be issued substantially in the form of
Exhibit B-1 or Exhibit B-2 hereto. Notes represented by a master note
shall be referred to herein as "Book-Entry Notes."
WHEREAS, Merrill Lynch has indicated its willingness to act as
agent of the Company in the private placement of the Notes, subject to the
satisfactory completion of such investigation and inquiry into the
Company's business as Merrill Lynch deems appropriate under the
circumstances.
NOW THEREFORE, in consideration of the premises, the parties
agree as follows:
1. Appointment as Placement Agent. (a) The Company appoints
Merrill Lynch as one of its placement agents for the Notes and
acknowledges that Merrill Lynch shall have the right to assist the
Company in the placement of the Notes during the term of this Agreement
in conjunction with Company's other placement agents. The Company
agrees that during the period Merrill Lynch is acting as the Company's
placement agent hereunder, the Company shall not, except through its
co-placement agents, directly contact or solicit potential investors to
purchase the Notes or engage any person or party to assist in the
placement of Notes. While Merrill Lynch shall not have any obligation to
purchase, as principal, Notes from the Company under any circumstances,
Merrill Lynch may, from time to time, in its sole discretion purchase
Notes, as principal, from the Company.
(b) The Company and Merrill Lynch agree that any Notes
the placement of which Merrill Lynch arranges or which are purchased by
Merrill Lynch shall be placed or purchased by Merrill Lynch in reliance on
the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the
manner provided herein.
(c) The Notes will be issued pursuant to an issuing and
paying agency agreement (the "Issuing and Paying Agreement ") between
Chase Manhattan Bank, as issuing and paying agent (the "Issuing and
Paying Agent") and the Company. The Company will not amend the
Issuing and Paying Agency Agreement without giving Merrill Lynch prior
notice and a copy of such amendment. The Notes will be issued in such
face or principal amounts (but not less than $250,000 each), and will bear
such interest rates (if interest-bearing), or will be sold at such discounts,
from their face amounts, as shall be mutually agreed to by the Company
and Merrill Lynch at the time of each proposed purchase or placement.
(d) Merrill Lynch shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, in whole
or in part.
(e) The Company may instruct Merrill Lynch to suspend
solicitation of purchases of Notes at any time. Upon receipt of such
instruction, Merrill Lynch will forthwith suspend solicitation until such
time as the Company has advised it that solicitation of purchases may be
resumed.
2. Offers and Sales of the Notes. The offer and sale of the Notes
by the Company is to be effected pursuant to the exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Act"), provided by Section 4(2) thereof and Regulation D thereunder,
which exempt transactions by an issuer not involving any public offering.
Offers and sales of the Notes by the Company will be made in accordance
with the general provisions of Rule 506 under the Act. Merrill Lynch and
the Company hereby establish the following procedures in connection with
the offer and sale or resale of the Notes:
(a) Offers and sales of the Notes will be made by the
Company only to purchasers which qualify as accredited investors (as
defined in Rule 501 (a) under the Act) (each such institutional purchaser
being hereinafter called an "accredited investor"). Resales of the Notes
will be made only to accredited investors or to institutional purchasers
which are qualified institutional buyers (as defined in Rule 144A under the
Act) (each such institutional purchaser being hereinafter called a "qualified
institutional buyer"). No Notes will be offered to natural persons.
(b) The Notes will be offered only by approaching
prospective purchasers on an individual basis. The Notes will not be
offered or sold by any means of general solicitation or general advertising.
(c) In the case of a purchaser which is acting as a fiduciary
for one or more third parties and which is not a bank as defined in Section
3(a)(2) of the Act or a savings and loan association or other institution as
described in Section 3(a)(5) of the Act (each such purchaser, a "non-bank
fiduciary"), each such third party will, in the judgment of Merrill Lynch,
after due inquiry be an accredited investor or qualified institutional buyer.
(d) No sale of the Notes to any one purchaser will be for
less than $250,000 face amount and no Note will be issued in a smaller
face amount. If the purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom it is acting must purchase at least $250,000
face amount of the Notes.
(e) Each individual Note shall contain the legend set forth
on the form of such Note attached as Exhibit A-1 or A-2 hereto, stating
in effect that such Note has not been registered under the Act and that a
resale or other transfer of such Note or any interest therein shall be made
only (i) to Merrill Lynch or through Merrill Lynch to an institutional
investor approved as an accredited investor or as a qualified institutional
buyer by Merrill Lynch or (ii) to a qualified institutional buyer in a
transaction made pursuant to Rule 144A under the Act. The purpose of
this requirement is to ensure that Notes are resold or otherwise transferred
only to accredited investors or qualified institutional buyers and not in a
manner that might call into question the non-public offering character of
the offer and sale of the Notes.
(f) A Private Placement Memorandum will be made
available to each purchaser or prospective purchaser together with any
supplements to such Private Placement Memorandum which may have
been prepared by the Company. The Private Placement Memorandum will
contain a representation to the effect that the purchaser of a Note has
hadan opportunity to ask questions of, and receive answers from, the
Company concerning the offering of the Notes and to obtain copies of any
of the Company Information (as defined below) that is referred to therein
at no charge. The Private Placement Memorandum, including any
Company Information referred to therein ishereby referred to as the
"Disclosure Documents".
(g) In addition to the other requirements of this Section 2,
during any period the Company is not subject to the periodic filing
requirements of the Securities Exchange Act of 1934, the Company
agrees that, upon written request by any holder of the Notes, the
Company will provide to the holder or to a prospective purchaser
designated by the holder a copy of the Private Placement Memorandum
and(i) the Company's most recent audited balance sheet that is as of a date
less than 16 months old and audited statements of profit and loss and
retained earnings for the 12 months preceding the date of the balance
sheet, (ii) similar audited financial statements for the preceding two fiscal
years or for such shorter period as the Company has been in operation and
(iii) if the Company's most recent balance sheet is not as of a date less than
six months old, additional statements of profit and loss and retained
earnings (which may be unaudited) for the period from the date of such
balance sheet to a date as of less than six months old. The purpose of this
provision is to satisfy the conditions of paragraph (d)(4) of Rule 144A
under the Act, so that resales of the Notes may be made to qualified
institutional buyers pursuant to the exemption from registration provided
by Rule 144A. The Private Placement Memorandum and each Note shall
disclose that a holder of the Note may request, in writing, the information
specified by paragraph (d)(4) of Rule 144A in connection with an intended
sale or transfer of the Note pursuant to Rule 144A.
(h) The Company agrees to cooperate with Merrill Lynch
in the preparation of the Private Placement Memorandum and in amending
it as from time to time may be necessary. Accordingly, the Company
agrees to furnish Merrill Lynch with such information as requested to
satisfy the conditions of paragraph (d)(4) of Rule 144A under the Act.The
Company will furnish copies of its most recent Annual Report on Form
10-K filed with the Securities and Exchange Commission (the "SEC"),
each definitive proxy statement, each report on Form 10-Q and each
report on Form 8-KAs long as any of the Notes are outstanding, the
Company will provide Merrill Lynch with copies of all annual, interim,
quarterly reports, proxy statements and registration statements which the
Company files with the SEC, copies of all reports to the rating agencies,
of all public releases or other publicly availableinformation (collectively,
"the Company Information") in such quantities as Merrill Lynch may
reasonably request.
(i) Prior to any offer or sale of Notes, Merrill Lynch shall,
with the cooperation of the Company, have the right to make such
reasonable due diligence investigation of the business of the Company as
is usual in the course of continuous offerings of debt instruments. The
Company will immediately inform Merrill Lynch in writing of any material
adverse change the condition, financial or otherwise, earnings, business
affairs, results of operations or business prospects of the Company which
(i) make or might make any statement in the Disclosure Documents false
or misleading in any material respect or (ii) are not disclosed in such
documents. In such event, Merrill Lynch shall not thereafter attempt to
offer or place any of the Notes until the Company shall have prepared and
furnished to Merrill Lynch, in such numbers as Merrill Lynch may require,
supplements to, or amendments of, the Private Placement Memorandum
reflecting any such material changes. Such supplements or amendments
shall be prepared promptly by the Company.
(j) The Company agrees to file a notice on Form D with the
Securities and Exchange Commission (the "SEC") no later than fifteen
days after the first issuance of Notes and at such other times as may be
required pursuant to Rule 503 under the Act.
(k) Merrill Lynch shall not be liable or responsible to the
Company for any losses, damages or liabilities suffered or incurred by the
Company, including any losses, damages or liabilities under the Act,
arising from or relating to any resale or transfer of a Note other than for
losses, damages or liabilities arising from Merrill Lynch's gross negligence
or willful misconduct.
3. Representations and Warranties. The Company represents and
warrants to Merrill Lynch as of the date hereof and as of each date
contemplated by Section 4 hereof that:
(a) The Disclosure Documents do not and will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they are made, not misleading.
(b) The financial statements included in the Disclosure
Documents, if any, are and will be in accordance with the related books
and records of the Company and are and will be complete and correct and
fairly present in accordance with generally accepted accounting principles
the financial position of the Company and its consolidated subsidiaries as
at the dates set forth therein and the results of their operations for the
periods set forth therein. Except as set forth in the Disclosure
Documents, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a basis which is
consistent in all material respects during the periods involved. The
supporting schedules, if any, included in the financial statements present
fairly the information required to be stated therein as of the dates or for
the periods indicated.
(c) Since the respective dates as of which information is
given in the Disclosure Documents, except as may otherwise be stated or
contemplated therein or in any amendment or supplement thereto, there
has not been any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries taken as a whole, or in the
earnings, affairs or business prospects of the Company, and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business.
(d) The Company (i) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of corporation, and (ii) has the requisite corporate power and
authority to execute and deliver the Notes and to perform its obligations
thereunder and to own its properties and conduct its business as described
in the Disclosure Documents.
(e) The Company is not in violation of its charter or by-laws or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement or lease to which the
Company is a party or by which it may be bound. The execution and
delivery of this Agreement, the Issuing and Paying Agency Agreement and
the Notes and the incurrence of the obligations and consummation of the
transactions herein contemplated will not conflict with, or constitute a
breach of or default under, its charter or by-laws of the Company or any
material contract, indenture, mortgage, loan agreement or lease, to which
each is a party or by which the Company may be bound, or any law,
administrative regulation or court decree.
(f) Each of this Agreement and the Issuing and Paying
Agency Agreement has been duly authorized, executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws
relating to or affecting generally the enforcement of creditors' rights or by
general equitable principles.
(g) The Notes have been duly authorized for issuance, offer
and sale as contemplated by the Agreement and, when issued and
delivered against payment of the purchase price therefor, will constitute
legal, valid and binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws relating to or affecting
generally the enforcement of creditors' rights or by general equitable
principles.
(h) Assuming compliance with Section 5(b) hereof, no
consent, approval, authorization, order, registration or qualification of or
with any court or any regulatory authority or other governmental agency
or body (including the SEC) is required for the issuance, offer or sale of
the Notes by the Company in accordance with the terms of this
Agreement or for the consummation of the transactions contemplated by
this Agreement, the Issuing and Paying Agency Agreement or the Notes.
(i) There are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject, other
than as set forth in the Disclosure Documents and other than legal or
governmental proceedings, which in each case will not have a material
adverse effect on the business, financial condition, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
and to the best of its knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(j) The Company is not an "investment company", or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(k) The offer, issuance, sale and delivery of the Notes in
accordance with the terms of this Agreement will constitute exempt
transactions under the Act pursuant to Section 4(2) thereof, and
registration of the Notes under the Act will not be required; the Notes are
eligible pursuant to Rule 144A under the Act.
(l) The Notes rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
(m) The Company agrees to maintain credit lines with
Chemical Bank, as agent bank (as agent bank, the "Bank") which can be
used to support payment on the Notes hereunder and agrees to report, and
will cause the Bank to report, to Merrill Lynch on the status and usage of
such credit lines, on a [quarterly] [monthly] basis.
4. Additional Representation and Warranty. Each acceptance by
the Company of an offer for the purchase of Notes shall be deemed an
affirmation by the Company that its representations and warranties set
forth in Section 3 hereof are true and correct at the time of such
acceptance, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or its agent
of the Note or Notes relating to such acceptance, as though made at and
as of such time (it being understood that insofar as such representations
and warranties relate to the Private Placement Memorandum, such
representations and warranties shall relate to the Private Placement
Memorandum delivered to prospective purchasers of Notes at the time of
such acceptance and at the time of such delivery of the Note or Notes
relating to such acceptance, respectively.)
5. Covenants (a) The Company agrees that no future offer and
sale of debt securities of the Company of any class will be made if, as a
result of the doctrine of "integration" referred to in Rule 502 of
Regulation D under the Act, Securities Act Release No. 6389 (March 8,
1982), Securities Act Releases Nos. 4434 (December 6, 1961), 4552
(November 6, 1962) and 4708 (July 9, 1964), and various "no-action"
letters made available by the SEC, such offer and sale would call into
question the entitlement of the Notes to the exemption from the
registration requirements of the Act provided by Section 4(2) thereof.
(b) The Company will endeavor, in cooperation with
Merrill Lynch, to qualify the Notes for offer and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as the Company and Merrill Lynch shall determine, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided.
(c) No part of the proceeds of any Notes will be used in
any transaction or for any purpose which violates the provisions of
Regulations, G, T, U and X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. Other
than pursuant to the requirements of the following sentence, the Company
shall not use the proceeds of the Notes to finance any acquisition of
securities, within the meaning of Regulation T. The Company agrees that
if it intends to use the proceeds of the sale of its Notes for the purpose of
purchasing or carrying securities within the meaning of Regulation T and
the interpretations thereunder by the Board of Governors of the Federal
Reserve System, it will give five business days' notice to Merrill Lynch of
its intention to do so and prompt notice of the actual commencement of
such use of proceeds.
6. Conditions Precedent to Placement of the Notes. (a) Prior to
the initial placement of Notes hereunder the Company shall cause to be
delivered to Merrill Lynch (i) the written opinion of counsel to the
Company substantially in the form of Exhibit C hereto, (ii) a certificate of
the Secretary or other appropriate officer of the Company certifying true
copies of the resolutions of the Company approving this Agreement, the
Issuing and Paying Agency Agreement, the Notes and the transactions
contemplated hereby and certifying the incumbency, authority and true
signatures of the officers of the Company authorized to sign this
Agreement and the Notes, and (iii) an original executed copy, photocopy
or conformed copy of the Issuing and Paying Agency Agreement, which
shall be in form and substance reasonably acceptable to Merrill Lynch, and
(iv) if applicable, the DTC Representation Letter (as that term is defined
below) which shall be in form and substance reasonably acceptable to
Merrill Lynch. Merrill Lynch may deliver a copy of the opinion referred
to in clause (i) above to any purchaser of a Note who requests such a
copy.
7. Delivery of and Payment for the Notes. (a) On the date of a
proposed issuance of Notes, Merrill Lynch shall confer with the Company
as to the face or principal amount, maturities and denominations thereof,
the applicable interest rates or the discounts from the face amounts, at
which the Notes are to be issued.
(b) When agreement is reached on the foregoing, (i) if the
Notes are evidenced by Certificated Notes, the Company will instruct the
Issuing and Paying Agent or another issuing agent designated by the
Company in written notice to Merrill Lynch to deliver executed and
countersigned Certificated Notes to N.S.C.C. New York Window, 55
Water Street, Concourse Level, South Building, New York, New York
10041, Attention: Al Mitchell, prior to 2:15 p.m., New York City time,
on the date of issuance, and (ii) if the Notes are Book-Entry Notes, the
issuance of and payment for such Notes will be governed by a letter
agreement between the Company and The Depository Trust Company
(the "DTC Representation Letter").
(c) Following Merrill Lynch's receipt of duly and properly
completed Certificated Notes, Merrill Lynch or its agent will transfer by
the close of business on such day immediately available funds to the
Issuing and Paying Agent or to such other bank as may be designated in
writing by the Company to Merrill Lynch in an amount equal to the net
proceeds of the Certificated Notes.
(d) Merrill Lynch will mail written confirmations of each
purchase or placement to the Company, which confirmations of each
purchase or placement to the Company, which confirmations shall set
forth face or principal amounts, maturities and denominations of the Notes
purchased or placed and the applicable interest rates or discounts.
(e) In the event that a customer shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement,
Merrill Lynch shall promptly notify the Company, and if Merrill Lynch has
theretofore paid the Company for such Note, the Company will promptly
return such funds to Merrill Lynch against its return of the Note to the
Company, in the case of a Certificated Note, and upon notice from Merrill
Lynch of such failure, in the case of a Book-Entry Note. If such failure
occurred for any reason other than default by Merrill Lynch, the Company
shall reimburse Merrill Lynch on an equitable basis for Merrill Lynch's loss
of the use of such funds for the period such funds were credited to the
Company's account.
8. Indemnification. (a) The Company agrees to assume
liability for and to indemnify, protect, save and hold harmless Merrill
Lynch, each individual, corporation, partnership, trust, association or
other entity ("Person") controlling Merrill Lynch (including, without
limitation, Merrill Lynch & Co., Inc. and Merrill Lynch Government
Securities Inc.), any affiliate of any such Person or Merrill Lynch and their
respective directors, officers, incorporators, shareholders, partners,
servants, trustees, employees and agents (all of such indemnified entities
hereinafter the "Indemnitees") from and against any and all losses,
liabilities, claims, damages, penalties, causes of action, suits, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) or judgments of whatever kind and nature, imposed upon,
incurred by or asserted against the Indemnitees, which are (i) based upon
or arising under the securities laws of the United States of America or of
any state or any regulation, rule or interpretation thereunder or thereof to
the extent arising from the transactions contemplated hereby, (ii) based
upon the inaccuracy of any representation made or reaffirmed by the
Company or the breach of any agreement or covenant of the Company
contained herein, or (iii) based upon any untrue statement or alleged
untrue statement of a material fact in the Disclosure Documents, or the
omission or alleged omission from the Disclosure Documents of a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If any action, suit or
proceeding arising from any of the foregoing is brought against any of the
Indemnitees, the Company will, at its own expense, resist and defend such
action, suit or proceeding or cause the same to be resisted and defended
by counsel designated by the Company (which counsel shall be reasonably
satisfactory to such Indemnities) and regardless of whether the Company
is a party to the same, pay all reasonable costs and expenses of such
defense as incurred (including, without limitation, reasonable attorneys'
fees and expenses).
It is agreed, however, that the obligations of the Company under
this Section 8 shall not extend to any liability of any Indemnitee arising out
of the inclusion by any Indemnitee of an untrue statement of a material
fact relating to Merrill Lynch or an omission to state a material fact
relating to Merrill Lynch necessary to make any statement, in light of the
circumstances under which it was made, not misleading.
The foregoing indemnity will also extend to any supplemental
material subsequently furnished to Merrill Lynch by the Company and
distributed to purchasers or prospective purchasers during the term of this
Agreement.
(b) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this Section
8 is for any reason held unavailable (otherwise than in accordance with the
terms of this Section 8), the Company on the one hand, and any
Indemnitees, on the other hand, sought to be charged with any liability
shall contribute to the aggregate costs of satisfying such liability in the
proportion of their respective economic interests. For purposes of this
Section 8, the "economic interests" of the Company shall be equal to the
aggregate proceeds of the Notes issued in connection with this Agreement
received by the Company and the "economic interest" of any Indemnitee
shall be equal to the aggregate commissions and fees earned by Merrill
Lynch hereunder.
The obligations of the Company under this Section 8 shall survive
any termination of this Agreement, in whole or in part.
9. Fees and Expenses. (a) As compensation for the services of
Merrill Lynch hereunder, the Company shall pay it, on a discount basis, a
commission for the sale of each Note at such rate as shall be agreed upon
from time to time by the Company and Merrill Lynch.
(b) The Company will (i) pay all customary and reasonable
costs and expenses incident to the placement and issuance of the Notes,
(ii) reimburse Merrill Lynch for all of its out-of-pocket expenses, including
the cost of preparing and distributing the Private Placement Memorandum
and the Notes, and (iii) upon receipt of an invoice, pay directly or
reimburse Merrill Lynch for the reasonable fees and expenses of any
outside counsel utilized by Merrill Lynch in connection with this
Agreement and the transactions contemplated hereby.
10. Notices. Unless otherwise indicated, all notices required
under the terms and provisions hereof shall be in writing, either delivered
by hand, by mail (postage prepaid), or by telex, telecopier or telegram,
and any such notice shall be effective when received at the address
specified below
If to the Company:
Humana Inc.
500 West Main Street
Louisville, KY 40202
Attention: James W. Doucette, Vice President -
Investments and Treasurer
Telephone No: 502-580-1002
Facsimile No: 502-580-4089
If to Merrill Lynch:
Merrill Lynch Money Markets Inc.
Merrill Lynch World Headquarters
World Financial Center - North Tower
250 Vesey Street - 10th Floor
New York, New York 10281-1310
Attention: Product Management - CP
Telephone No: (212) 449-0276
Facsimile No: (212) 449-2234
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 10 to the
other party hereto.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with, the laws of the State of New York.
12. Choice of Forum. The Company agrees that any suit, action
or proceeding brought by oragainst Merrill Lynch in connection with or
arising out of this Agreement, any agreement, instrument or document
entered into in connection with this Agreement or the offer and sale of the
Notes shall be brought solely in the United States Federal courts located
in the Borough of Manhattan or the courts of the State of New York
located in the Borough of Manhattan.
13. Amendment and Termination; Successors; Counterparts. (a)
The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by written
instrument signed by both parties hereto. Either party to this Agreement
may terminate this Agreement upon written notice to each other party
hereto, provided that such termination shall not affect the obligations of
the parties hereunder with respect to Notes outstanding at the time of
such termination and actions or events occurring prior to such termination
or with respect to Section 8 or Section 9 hereof.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
(c) This Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof.
14. Captions. The captions in this Agreement are for convenience
of reference only and shall not define or limit any of the terms or
provisions hereof.
15. Effective Date. This Agreement shall be effective as of the
date and year first above written.
16. Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first above written.
HUMANA INC.
By:/s/James W. Doucette
Vice President Investments & Treasurer
Authorized Signatory
MERRILL LYNCH
MONEY MARKETS INC.
By:/s/Scott G. Primrose
Authorized Signatory