EXHIBIT 10.33
FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT, dated as of October
30, 2001 (this "Amendment"), amends the 364-Day Credit Agreement, dated as of
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October 31, 2000 (the "Credit Agreement"), among UNUMPROVIDENT CORPORATION, a
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Delaware corporation (the "Company"), the various financial institutions parties
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thereto (collectively, the "Banks"), Citicorp USA, Inc. and Wachovia Bank, N.A.
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as Co-Syndication Agents, Fleet National Bank, as Documentation Agent, and Bank
of America, N.A., as Administrative Agent (the "Agent"). Terms defined in the
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Credit Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement,
which provides for the Banks to extend certain credit facilities to the Company
from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENT. Effective as of the date hereof, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.5 below.
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1.1 Definitions. The definition of "Revolving Termination Date" in
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Section 1.1 of the Credit Agreement is hereby amended by deleting the date
"October 30, 2001" and substituting the date "October 29, 2002" therefor.
1.2 Schedule 2.1. Schedule 2.1 of the Credit Agreement is hereby
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amended to state as set forth as Schedule 2.1 hereto.
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1.3 Exiting Banks. Banca di Roma shall no longer be parties to the
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Credit Agreement and shall be released from all further obligations as Banks
thereunder.
1.4 Agents. Fleet National Bank shall no longer be Documentation Agent.
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Bank of Tokyo-Mitsubishi Trust Company and The Chase Manhattan Bank shall be
Co-Documentation Agents.
1.5 Section 7.10(a). Section 7.10(a) of the Credit Agreement is hereby
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amended in its entirety to read as follows:
(a) The Company shall not permit its Tangible Net Worth at any
time to be less than (i) $1,444,400,000 plus (ii) 25% of consolidated
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Net Income (in excess of zero) for each fiscal quarter ending on or
after June 30, 2001.
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 2 shall have
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been satisfied, and notice thereof shall have been given by the Agent to the
Company and the Banks.
SECTION 2.1 Receipt of Documents. The Agent shall have received all of
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the following documents duly executed, dated the date hereof or such other date
as shall be acceptable to the Agent, and in form and substance satisfactory to
the Agent:
(a) Amendment. This Amendment, duly executed by the Company, the
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Agent and the Banks (including the New Banks).
(b) Secretary's Certificate. A certificate of the secretary or
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an assistant secretary of the Company, as to (i) resolutions of the
Board of Directors of the Company then in full force and effect
authorizing the execution, delivery and performance of this Amendment
and each other document described herein, and (ii) the incumbency and
signatures of those officers of the Company authorized to act with
respect to this Amendment and each other document described herein.
SECTION 2.2 Compliance with Warranties, No Default, etc. Both before
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and after giving effect to the effectiveness of this Amendment, the
following statements by the Company shall be true and correct (and the
Company, by its execution of this Amendment, hereby represents and
warrants to the Agent and each Bank that such statements are true and
correct as at such times):
(a) the representations and warranties set forth in Article V
of the Credit Agreement shall be true and correct with the same effect
as if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct as of such earlier date); and
(b) no Event of Default or Default shall have then occurred and
be continuing.
SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Agent to enter into this Amendment, the Company hereby represents and warrants
to the Agent and each Bank as follows:
3.1 Due Authorization, Non-Contravention, etc. The execution,
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delivery and performance by the Company of this Amendment are within the
Company's corporate powers, have been duly authorized by all necessary corporate
action, and do not
(a) contravene the Company's Organization Documents;
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(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Company; or
(c) result in, or require the creation or imposition of, any Lien on
any of the properties.
3.2 Government Approval, Regulation, etc. No authorization or approval or
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other action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Company.
3.3 Validity, etc. This Amendment constitutes the legal, valid and binding
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obligations of the Company enforceable in accordance with its terms.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
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amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
shall remain in full force and effect and is hereby ratified, approved and
confirmed in each and every respect. After the effectiveness of this Amendment
in accordance with its terms, all references to the Credit Agreement in the Loan
Documents or in any other document, instrument, agreement or writing shall be
deemed to refer to the Credit Agreement as amended hereby.
4.2 Payment of Costs and Expenses. The Company agrees to pay on demand all
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expenses of the Agent (including the fees and out-of-pocket expenses of counsel
to the Agent) in connection with the negotiation, preparation, execution and
delivery of this Amendment.
4.3 Severability. Any provision of this Amendment which is prohibited or
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unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.4 Headings. The various headings of this Amendment are inserted for
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convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
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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.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
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UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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4.7 Successors and Assigns. This Amendment shall be binding upon and
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shall inure to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
UNUMPROVIDENT CORPORATION
By:______________________
Title:___________________
S-1
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By:_______________________________
Title:____________________________
S-2
CITICORP USA, INC.
By:_______________________________________
Title:____________________________________
S-3
WACHOVIA BANK, N.A.
By:________________________________________
Title:_____________________________________
S-4
FLEET NATIONAL BANK
By:_________________________________________
Title:______________________________________
S-5
BANK ONE, NA
By:_______________________________________
Title:____________________________________
S-6
THE CHASE MANHATTAN BANK
By:______________________________________________
Title:___________________________________________
S-7
AMSOUTH BANK
By:_______________________________________
Title:____________________________________
S-8
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By:_________________________________________
___________________________________ Title:______________________________________
S-9
THE DAI-ICHI KANGYO BANK, LTD
By:_________________________________
Title:______________________________
S-10
LLOYDS TSB BANK PLC
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
S-11
ROYAL BANK OF CANADA
By:_________________________________
Title:______________________________
S-12
STATE STREET BANK AND TRUST
COMPANY
By:_________________________________
Title:______________________________
S-13
SCHEDULE 2.1
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364-DAY CREDIT AGREEMENT
COMMITMENTS
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AND PRO RATA SHARES
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Pro Rata
Bank Commitment Share
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Bank of America, N.A. $59,000,000 11.18%
Bank of Tokyo-Mitsubishi
Trust Company $59,000,000 11.18%
The Chase Manhattan Bank $59,000,000 11.18%
Citicorp USA, Inc. $59,000,000 11.18%
Wachovia Bank, N.A. $59,000,000 11.18%
Fleet National Bank $50,000,000 9.48%
Lloyds TSB Bank PLC $50,000,000 9.48%
Royal Bank of Canada $50,000,000 9.48%
AmSouth Bank $25,000,000 4.74%
The Dai-Ichi Kangyo Bank, Ltd. $25,000,000 4.74%
Bank One, NA $20,000,000 3.79%
State Street Bank and Trust Company $12,500,000 2.37%
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Total $527,500,000 100%
Schedule 2.1, Page 1