Exhibit 4.14
________________________________________
________________________________________
AETNA SERVICES, INC
(formerly Aetna Life and Casualty Company)
AETNA INC.
AND
STATE STREET BANK AND TRUST COMPANY, AS SUCCESSOR FISCAL AGENT
_______
AMENDMENT NO. 1
Dated as of August 1, 1996
to
FISCAL AGENCY AGREEMENT
Dated as of July 17, 1986
Between
Aetna Services, Inc.
(formerly Aetna Life and Casualty Company)
and
State Street Bank and Trust Company, as successor Fiscal Agent
____________________________________
____________________________________
AMENDMENT
AMENDMENT NO. 1, dated as of August 1, 1996, among AETNA SERVICES,
INC. (formerly Aetna Life and Casualty Company), a corporation
duly organized and validly existing under the laws of the State of
Connecticut (the "Company"), AETNA INC., a corporation duly
organized and validly existing under the laws of the State of
Connecticut (the "Guarantor"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, as successor Fiscal Agent
(the "Fiscal Agent").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company and the Fiscal Agent have heretofore executed
and delivered the Fiscal Agency Agreement dated as of July 17,
1986 (the "Fiscal Agency Agreement") and the Company has issued
$200 million principal amount of its 7 3/4% Notes Due 2016 (the
"Securities") thereunder.
Pursuant to an Agreement and Plan of Merger dated as of
March 30, 1996, as amended by Amendment No. 1 thereto dated as of
May 30, 1996 among the Company, the Guarantor, U.S. Healthcare,
Inc., Antelope Sub, Inc., a wholly owned subsidiary of the
Guarantor ("Aetna Sub"), and New Merger Corporation, a wholly
owned subsidiary of the Guarantor, on July 19, 1996 Aetna Sub was
merged with and into the Company with the result that the Company
is as of the date of this Amendment No. 1 a direct wholly-owned
subsidiary of the Guarantor. In connection with such merger the
Company's Certificate of Incorporation was amended to change its
name to Aetna Services, Inc.
This Amendment No. 1 amends the Fiscal Agency Agreement
pursuant to Section 13 thereof: (i) to provide for the full and
unconditional guarantee by the Guarantor of the due and punctual
payment of the principal of, premium, if any, and interest
(including Additional Amounts as defined in the Terms and
Conditions of the Securities) on the Securities and (ii) to make
certain other changes to the Fiscal Agency Agreement.
All acts and proceedings required by law, by the Fiscal
Agency Agreement and by the certificates of incorporation and
bylaws of the Company and the Guarantor necessary to constitute
this Amendment No. 1 a valid and binding agreement for the uses
and purpose herein set forth in accordance with its terms have
been done and performed, and the execution and delivery of this
Amendment No. 1 have in all respects been duly authorized.
NOW, THEREFORE, in consideration of the foregoing and
other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each party agrees as follows for the
benefit of the other parties and for the equal and ratable benefit
of the holders of the Securities and any coupons appertaining
thereto.
SECTION 1. Certain Definitions. Unless otherwise
defined in this Amendment No. 1, terms defined in the Fiscal
Agency Agreement or the Securities are used herein as therein
defined. As used in this Amendment No. 1, the following terms
have the meanings set forth below:
(a) The term "Guarantee" shall mean the guarantee set
forth in Section 3 hereof, including any evidence of such
guarantee by endorsement on any Security pursuant to Section
5 hereof. The Guarantee shall be deemed part of the
Securities.
(b) The term "Guarantor" shall mean AETNA INC., a
Connecticut corporation, and, subject to the provisions of
Section 6, shall also include its successors and assigns.
SECTION 2. General. The Guarantor is hereby made a
party to the Fiscal Agency Agreement. The Guarantor hereby
appoints the Fiscal Agent as its fiscal agent in respect of the
Guarantee upon the terms and subject to conditions in the Fiscal
Agency Agreement, as amended hereby, and in the Securities and the
Guarantee set forth. From and after the date of this Amendment
No. 1 all references in the Fiscal Agency Agreement to "the
Agreement", "hereunder" or "herein" or words of a similar nature
shall mean the Fiscal Agency Agreement as amended by this
Amendment No. 1.
SECTION 3. Guarantee. The Guarantor hereby
unconditionally guarantees to each Holder of a Security
authenticated and delivered by or on behalf of the Fiscal Agent
and to each Holder of any interest coupon appertaining thereto the
due and punctual payment of the principal of, premium, if any, and
interest on such Security or interest coupon, and Additional
Amounts, if any, payable pursuant to the terms of the Securities,
where, when and as the same shall become due and payable, whether
at maturity, by declaration of acceleration, call for redemption or
otherwise, according to the terms of such Securities and
interest coupons. In case of default by the Company in the
payment of any such principal, premium, interest or Additional
Amounts, the Guarantor hereby agrees duly and punctually to make
any such payment where, when and as the same shall become due and
payable, whether at maturity, by declaration of acceleration, call
for redemption or otherwise, and as if such payment was made by
the Company. The Guarantor hereby agrees that its obligations
hereunder shall be as if it were principal debtor and not merely
surety, and shall be absolute and unconditional, irrespective of,
and shall be unaffected by, the validity, legality or
enforceability of any such Security or any interest coupon
appertaining thereto or the Fiscal Agency Agreement, the absence
of any action to enforce the same, or any waiver, modification,
indulgence or consent granted to the Company with respect thereto
by the Holder of any Security or any such interest coupon, the
recovery of any judgment against the Company or any action to
enforce the same, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a surety
or guarantor; provided, however, that notwithstanding the
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foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal
amount of a Security or the interest rate thereon or increase any
premium payable upon redemption thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims
with a court in the event of merger or bankruptcy of the Company,
any right of set-off or counterclaim, any right to require a
proceeding first against the Company, protest or notice with
respect to any Security or interest coupon or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that
this Guarantee will not be discharged as to any Security except by
payment in full of the principal of (premium, if any) and interest
on such Security and the interest coupons appertaining thereto.
The Guarantor shall be subrogated to all rights of a Holder of
a Security and to the rights of a Holder of any interest coupon
appertaining thereto against the Company in respect of any amounts
paid to such Holder by the Guarantor pursuant to the provisions of
the Guarantee; provided, however, that the Guarantor shall not,
without the consent of all Holders of Securities be entitled to
enforce, or to receive, any payments arising out of or based upon
such right of subrogation until the principal of, premium, if any,
interest and Additional Amounts, if any, then due and payable on
all Securities shall have been irrevocably paid in full in
accordance with the terms of such Securities and interest coupons.
The Guarantee is a guarantee of payment when due and not of
collection. The Guarantee shall continue to be effective, or be
reinstated, as the case may be, in respect of any Securities and
any interest coupons appertaining thereto if at any time payment, or
any part thereof, of such Security or interest coupon is
rescinded or must otherwise be restored or returned by the Holder
of such Security or interest coupon or any trustee for such Holder
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any other entity, or upon or as a
result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Company or any other
entity or any substantial part of their respective property, or
otherwise, all as though such payments had not been made.
SECTION 4. Execution of Guarantees. At the time that
any Security is authenticated and delivered by or on behalf of the
Fiscal Agent after the date of this Amendment No. 1 in connection
with the registration of transfer, exchange or replacement of a
Security or any interest coupon appertaining thereto as evidence
of the Guarantee set forth in Section 3 hereof, the Guarantor
hereby agrees that notation of such Guarantee shall be endorsed on
such Security in the form set forth in Section 5 hereof. The
Guarantee shall be executed on behalf of the Guarantor by its
Chairman, a Vice Chairman, its President, any Vice President, its
Treasurer or Assistant Treasurer under its corporate seal attested
by its Corporate Secretary or one of its Assistant Corporate
Secretaries. The signatures of any or all of these officers on
the Guarantees may be manual or by facsimile and may be imprinted
or otherwise reproduced on the Security. The seal of the
Guarantor may be in the form of a
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facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities.
Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Guarantor shall bind the Guarantor notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of the Securities on which such
Guarantees were endorsed or did not hold such offices at the date
of such Securities.
The Guarantor hereby agrees that the Guarantee set forth in
Section 3 hereof shall remain in full force and effect and shall
apply to each Security and each interest coupon appertaining
thereto executed, authenticated, issued and delivered under the
Fiscal Agency Agreement as amended hereby, whether or not a
notation of the Guarantee is endorsed on such Security.
The execution and delivery by the Company and the Guarantor of
this Amendment No. 1 shall constitute due delivery of the
Guarantee set forth herein on behalf of the Guarantor with respect
to all outstanding Securities and interest coupons appertaining
thereto. However, the Guarantee shall not be valid or become
obligatory for any purpose with respect to any specific Security
or interest coupon unless the Certificate of Authentication on
such Security provided for in the Fiscal Agency Agreement shall
have been signed by or on behalf of the Fiscal Agent.
SECTION 5. Form of Notation of Guarantee. The Guarantee
shall be endorsed on the Securities pursuant to Section 4 hereof
in the following form:
[Form of Notation of Guarantee]
GUARANTEE
OF
AETNA INC.
Aetna Inc., a Connecticut corporation (herein
called the "Guarantor", which term includes any
successor corporation under the Fiscal Agency
Agreement referred to in the Security upon which this
Guarantee is endorsed), for value received, hereby
unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed and to
each Holder of any interest coupon appertaining
thereto the due and punctual payment of the principal
of, premium, if any, and interest on said Security or
interest coupon, and Additional Amounts (as defined in
the Terms and Conditions of the Securities), if any,
payable pursuant to the terms of the Securities,
where, when and as the same shall become due and
payable, whether at
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maturity, by declaration of acceleration, call for
redemption or otherwise, according to the terms
thereof. In case of the failure of the Company
punctually to make any such payment of principal,
premium, interest or Additional Amounts the Guarantor
hereby agrees to pay or to cause any such payment to
be made punctually where, when and as the same shall
become due and payable, whether at maturity, by
declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the
Company. The Guarantor hereby agrees that its
obligations hereunder shall be as if it were principal
debtor and not merely surety, and shall be absolute
and unconditional, irrespective of, and shall be
unaffected by, the validity, legality or
enforceability of said Security or any interest coupon
appertaining thereto or the Fiscal Agency Agreement
dated as of July 17, 1986, as amended, among Aetna
Services Inc. (herein called the "Company"), the
Guarantor and State Street Bank and Trust Company, as
successor Fiscal Agent or the absence of any action to
enforce the same, or any waiver, modification, indul-
gence or consent granted to the Company with respect
thereto by the Holder of said Security or any interest
coupon appertaining thereto, the recovery of any
judgment against the Company or any action to enforce
the same or any other circumstance that might
otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor; provided, however,
that notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of
said Security or the interest rate thereon or increase
any premium payable upon redemption thereof. The
Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event
of bankruptcy of the Company, any right of set-off or
to counterclaim, any right to require a proceeding
first against the Company, protest or notice with
respect to said Security or interest coupon or the
indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not
be discharged except by payment in full of the
principal of, and premium, if any, and interest on
said Security or interest coupon.
The Guarantor shall be subrogated to all rights
of the Holder of a Security and to the rights of a
Holder of any interest coupon appertaining thereto
against the Company in respect of any amounts paid to
such Holder by the Guarantor pursuant to the
provisions of this Guarantee, provided, however, that
the Guarantor shall not, without the consent of all
Holders of all
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outstanding Securities, be entitled to enforce, or to
receive, any payments arising out of, or based upon,
such right of subrogation until the principal of,
premium, if any, interest and Additional Amounts then
due and payable on all Securities shall have been
irrevocably paid in full in accordance with the terms
of such Securities and interest coupons.
This Guarantee is a guarantee of payment when
due and not of collection. This Guarantee shall
continue to be effective, or be reinstated, as the
case may be, in respect of said Security and any
interest coupon appertaining thereto if at any time
payment, or any part thereof, of said Security or
interest coupon is rescinded or must otherwise be
restored or returned by the Holder of said Security or
interest coupon or any trustee for said Holder upon
the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Company or any other entity,
or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or
similar officer for, the Company or any other entity
or any substantial part of their respective property,
or otherwise, all as though such payments had not been
made.
No reference herein to such Fiscal Agency
Agreement and no provision of this Guarantee or of
such Fiscal Agency Agreement shall alter or impair the
guarantee of the Guarantor, which is absolute and
unconditional, of the due and punctual payment of the
principal of, and premium, if any, interest and
Additional Amounts, if any, on the Security upon which
this Guarantee is endorsed at the times, place and
rate, and in the cash or currency prescribed herein.
This Guarantee shall be governed by and
construed in accordance with the laws of the State of
New York, but without regard to principles of
conflicts of laws.
This Guarantee shall not be valid or become
obligatory for any purpose with respect to any
Security or interest coupon appertaining thereto
unless the certificate of authentication on said
Security shall have been manually signed by or on
behalf of the Fiscal Agent under the Fiscal Agency
Agreement.
All terms used in this Guarantee which are
defined in the Securities shall have the meanings
assigned to them in the Securities.
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IN WITNESS WHEREOF, Aetna Inc. has caused the
execution hereof in its corporate name by its duly
authorized officers.
Aetna Inc.
By___________________
[Seal]
Attest:
______________________________________
[Assistant] Corporate Secretary
SECTION 6. Guarantor May Consolidate, Etc., Only on Certain
Terms. (a) The Guarantor shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any person, unless:
(i) the corporation formed by such
consolidation or into which the Guarantor is merged
(including, without limitation, the Company) or the person
(including, without limitation, the Company) which acquires
by conveyance or transfer the properties and assets of the
Guarantor substantially as an entirety shall be a
corporation organized and existing under the laws of the
United States of America, any State thereof or the District
of Columbia (the "Successor Corporation") and shall
expressly assume, by amendment to the Fiscal Agency
Agreement, as amended hereby, signed by the Guarantor and
such Successor Corporation and delivered to the Fiscal
Agent, the due and punctual performance of the obligations
of the Guarantor under the Guarantee of the Securities then
outstanding and interest coupons appertaining thereto and
the performance or observance of every covenant of the
Fiscal Agency Agreement, as amended hereby, on the part of
the Guarantor to be performed or observed;
(ii) immediately after giving effect to such
transaction, no event of default (as set forth in Paragraph
7 of the Terms and Conditions of the Securities), and no
event which, with notice or lapse of time or both, would
become such an event of default, shall have happened and be
continuing; and
(iii) the Guarantor has delivered to the
Fiscal Agent a certificate signed by an executive officer of
the Guarantor and a written opinion of
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counsel satisfactory to the Fiscal Agent (who may be counsel
to the Company or the Guarantor), each stating that such
transaction and such amendment to the Fiscal Agency
Agreement comply with this Section 6 and that all condi-
tions precedent herein provided for relating to such
transaction have been complied with.
(b) Upon any such consolidation or merger, or any
conveyance or transfer of the properties and assets of the
Guarantor substantially as an entirety in accordance with Section
6(a) hereof, the Successor Corporation shall succeed to, and be
substituted for, and may exercise every right and power of, the
Guarantor under the Fiscal Agency Agreement, as amended hereby,
and the Guarantee with the same effect as if such Successor
Corporation had been named as the Guarantor herein, and
thereafter, the predecessor person shall be relieved of all
obligations and covenants under the Fiscal Agency Agreement and the
Guarantee.
SECTION 7. Section 2 of the Fiscal Agency Agreement is
hereby amended (i) by inserting the words "and the Guarantor"
after the words "the Company" each time such words appear in the
third and fourth sentences thereof and (ii) by replacing the first
two sentences thereof with "The Company hereby appoints State
Street Bank and Trust Company, at present having its principal
office ("Principal Office") at Two ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its fiscal agent in respect of the
Securities upon the terms and subject to the conditions herein set
forth. (State Street Bank and Trust Company and its successor or
successors in accordance with Section 8 hereof are herein called
the "Fiscal Agent").
SECTION 8. Section 7 of the Fiscal Agency Agreement is
hereby amended as follows:
(a) Section 7(a) is amended (i) by replacing the words
"the Company agrees" in the fourth line thereof with the words
"the Company and the Guarantor, jointly and severally, agree" (ii)
by replacing the words "The Company also agrees" in the tenth line
thereof with the words "The Company and the Guarantor, jointly and
severally, also agree" and (iii) by inserting the words "and the
Guarantor" after the words "the Company" in the twenty-first line
thereof.
(b) Section 7(b) is amended by inserting the words (i)
"and the Guarantee" after the word "Securities" in the second line
thereof, (ii) "and the Guarantor" after the words "the Company" in
the fourth line thereof, (iii) "or the Guarantor" after the words
"the Company" in the fourteenth line thereof and (iv) "or the
Guarantor, as the case may be" after the words "the Company" in the
twentieth line thereof.
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(c) Section 7(c) is amended by inserting the words "or
the Guarantor" after the words "the Company" in the third line
thereof.
(d) Section 7(d) is amended by inserting the word
"Guarantee," after the word "coupon," therein.
(e) Section 7(e) is amended by inserting the words "or
the Guarantor" after the words "the Company" in the ninth and
twelfth lines thereof.
(f) Section 7(f) is amended by inserting the words (i)
"or of the Guarantee" after the words "Securities" therein and
(ii) "or the Guarantor, as the case may be" after the words "the
Company" in the last line thereof.
(g) Section 7(h) is amended by inserting the words (i)
"and the Guarantee" after the word "Securities" in the fourth line
thereof and (ii) "or the Guarantee" after the word "Securities" in
the sixth line thereof.
(h) Section 7(i) is amended by inserting the words (i)
"or the Guarantee" after the words "Securities" therein and (ii)
"or the Guarantor" after the word "Company" therein.
SECTION 9. The recitals contained herein and in the
Guarantee shall be taken as the statements of the Company and the
Guarantor; the Fiscal Agent and the other agents of the Company
(including the Principal Paying Agent and the Security Registrar)
assume no responsibility for their correctness. The Fiscal Agent
and such other agents make no representation as to the validity of
sufficiency of this Amendment No. 1 or the Guarantee, except for
the Fiscal Agent's due authorization to execute and deliver this
Amendment No. 1; provided, however, that the Fiscal Agent shall
________ _______
not be relieved of its duty to authenticate Securities, acting
itself or through an appointed Authenticating Agent, as authorized
by this Fiscal Agency Agreement, as amended hereby.
SECTION 10. The Company and the Guarantor will pay,
jointly and severally, all stamp taxes and other duties, if any,
which may be imposed by the United States, the United Kingdom or
any political subdivision or taxing authority of or in the
foregoing, with respect to the execution and delivery of the
Amendment No. 1.
SECTION 11. Section 11 of the Fiscal Agency Agreement is
hereby amended by (i) replacing the word "either" in the fifth
line thereof with the word "any" and (ii) inserting the following
as the address of the Guarantor:
The Guarantor.......... Aetna Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: Vice President--
Finance and Treasurer
The Fiscal Agent hereby agrees that, substantially simultaneously
with its furnishing to the Company any notice or communication
under the Fiscal Agency Agreement, as amended hereby, the Fiscal
Agent shall furnish a copy thereof to the Guarantor. The Company
hereby agrees that, substantially with its receiving or furnishing
any notice or communication under the Fiscal Agency Agreement, as
amended hereby, the Company will provide a copy thereof to the Guarantor.
SECTION 12. Effectiveness. This Amendment No. 1 shall
take effect as of the date hereof.
SECTION 13. Fiscal Agency Agreement Ratified. Except as
herein expressly provided, the Fiscal Agency Agreement is in all
respects ratified and confirmed by the Company and the Trustee and
all the terms, provisions and conditions thereof are and will
remain in full force and effect.
SECTION 14. Governing Law. This Amendment No. 1 shall be
governed by and construed in accordance with the laws of the State
of New York, but without regard to principles of conflicts of
laws.
SECTION 15. Execution in Counterparts. This Amendment
No. 1 may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together
constitute but one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed, and their respective
corporate seals to be hereunto duly affixed and attested, all as
of the day and year first above written.
AETNA SERVICES, INC.
[Seal]
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
__________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Vice President, Corporate Finance
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
AETNA INC.
[Seal]
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Vice President, Corporate Finance
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
STATE STREET BANK AND TRUST
COMPANY, AS FISCAL AGENT
[Seal]
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________
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