HNT » Topics » MISCELLANEOUS

These excerpts taken from the HNT 10-K filed Feb 27, 2009.

VI. MISCELLANEOUS

6.1 Unfunded Status and Application of ERISA. The Plan is an unfunded plan. In order to meet the deferred obligations hereunder, the Company may, but shall not be required to, establish a grantor trust and transfer thereto an amount necessary to provide payments equal to the aggregate balances of the Participants’ accounts. In the event that the Company transfers any amounts to a grantor trust to provide payments hereunder, such amounts, and all income attributable to such amounts, shall be subject to the claims of the Company’s general creditors. The Company’s obligations hereunder shall constitute general, unsecured obligations, payable solely out of its general assets, and no Participant or Beneficiary shall have any right to any specific assets. The Plan constitutes a mere promise by the Company to make benefit payments in the future.

6.2 Limitation on Rights. Neither the establishment of the Plan nor the payment of any account hereunder shall be construed as giving or granting any person any legal or equitable rights against the Company, the Board, the Committee, or any of their officers, trustees, associates, or agents, other than such as are specifically conferred by the express terms of the Plan.

6.3 Satisfaction of Claims. The payment to a Participant, Beneficiary or other person of an account balance hereunder pursuant to the terms of the Plan shall be in full satisfaction of all claims with respect to such account that such person may have against the Company.

6.4 Nonassignability. No amount deferred under the Plan or any amount credited to an account shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment, and any attempt to transfer or encumber the same shall be void.

6.5 Amendment of the Plan. The Committee may, in its sole discretion and without the consent of any Participant or Beneficiary, amend the Plan at any time and in any manner by duly adopted resolutions; provided, however, that no amendment shall reduce the amount credited to

 

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any account of any Participant immediately prior to such amendment and no amendment will be permitted which would result in taxation of Participants pursuant to Section 409A.

6.6 Termination of the Plan. The Company may, in its sole discretion, terminate the Plan without the consent of, or notification to, any person. Termination of the Plan shall not affect the time of payment of the Participant’s Account unless the Plan is terminated under circumstances which would permit the immediate payment to Participants of all amounts deferred under the Plan in compliance with Treasury Regulation 1.409A-3(j)(ix), in which case each Participant’s Account shall be paid out in full in a lump sum within 30 days following the date of the termination of the Plan.

6.7 Change in Control. If, following a Change in Control, as hereinafter defined, a Participant determines in good faith that the Company has failed to comply with any of its obligations under the Plan or, if the Company or any other person takes any action to declare the Plan void or unenforceable or institutes any litigation or other legal action designed to deny or diminish or to recover from any Participant the benefits intended to be provided hereunder, then the Company irrevocably authorizes such Participant to retain counsel of his or her choice at the expense of the Company to represent such Participant in connection with the initiation or defense of any litigation or other legal action, whether by or against the Company, or any director, officer, stockholder or other person affiliated with the Company, or any successor thereto in any jurisdiction. Reimbursements to Participants under this Section 6.7, if any, shall be made not later than the last day of the Participant’s taxable year following the year in which the Participant incurs the reimbursable expense. For purposes of this Section, a “Change in Control” shall mean:

(i) Approved Transaction. An action of the Board (or, if approval of the Board is not required as a matter of law, the stockholders of the Company) approving (a) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of Common Stock would be converted into cash, securities or other property, other than a Merger, or (b) any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or (c) the adoption of any plan or proposal for the liquidation or dissolution of the Company;

(ii) Control Purchase. The purchase by any person (as such term is defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation or other entity (other than the Company or any employee benefit plan sponsored by an Employer) of any Common Stock of the Company (or securities convertible into the Company’s Common Stock) for cash, securities or any other consideration pursuant to a tender offer or exchange offer, without the prior consent of the Board and, after such purchase, such person shall be the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20 percent or more of the combined voting power of the then outstanding securities of the Company ordinarily (and apart from rights accruing under special circumstances) having the right to vote in the election of directors (calculated as provided in Section (d) of such Rule 13d-3 in the case of rights to acquire the Company’s securities);

 

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(iii) Board Change. A change in the composition of the Board during any period of two consecutive years, such that individuals who at the beginning of such period constitute the entire Board shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election by the Company’s stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; or

(iv) Other Transactions. The occurrence of such other transactions involving a significant issuance of voting stock or change in Board composition that the Board determines to be a Change in Control for purposes of the Plan.

6.8 No Contractual Rights to Serve. Nothing in the Plan shall be interpreted as conferring any right on any Director to continue as a Director.

6.9 Severability. If a provision of the Plan shall be held illegal or invalid, the illegality or invalidity shall not affect the remaining parts of the Plan and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included in the Plan.

6.10 Tax Withholding; Other Tax Matters. Any payment required under the Plan shall be subject to all requirements of the law with regard to income and withholding taxes, filings, and making of reports, and the Company and Participant shall use their best efforts to satisfy promptly all such requirements. For purposes of this Plan, a Participant’s employment with the Company will not be treated as terminated unless and until such termination of employment constitutes a “separation from service” for purposes of Section 409A of the Code. It is the intention of the Company that the provisions of the Plan not result taxation of Participants under Section 409A of the Code and the regulations and guidance promulgated thereunder and that the Plan shall be construed in accordance with such intention.

6.11 Applicable Law. The Plan and all rights hereunder and all determinations made and actions taken pursuant thereto, to the extent not otherwise governed by the Code or the laws of the United States, shall be governed by the laws of the State of Delaware and construed in accordance therewith without giving effect to the principles of conflicts of laws.

 

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VI. MISCELLANEOUS

6.1 Unfunded Status and Application of ERISA. The Plan is intended to be an unfunded plan maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA and Department of Labor Regulation § 2520.104-23. In order to meet the deferred obligations hereunder, the Company and the Employers may, but shall not be required to, establish a grantor trust and transfer thereto an amount necessary to provide payments equal to the aggregate balances of the Participants’ accounts. In the event that the Company or an Employer transfers any amounts to a grantor trust to provide payments hereunder, such amounts, and all income attributable to such amounts, shall be subject to the claims of the Company’s or the Employer’s general creditors. The Company’s and each Employer’s obligations hereunder shall constitute general, unsecured obligations, payable solely out of its general assets, and no Participant or Beneficiary shall have any right to any specific assets. The Plan constitutes a mere promise by the Company and each Employer to make benefit payments in the future.

6.2 Limitation on Rights. Neither the establishment of the Plan nor the payment of any account hereunder shall be construed as giving or granting any person any legal or equitable rights against the Company, any Employer, the Board, the Committee, or any of their officers,

 

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trustees, associates, or agents, other than such as are specifically conferred by the express terms of the Plan.

6.3 Satisfaction of Claims. The payment to a Participant, Beneficiary or other person of an account balance hereunder pursuant to the terms of the Plan shall be in full satisfaction of all claims with respect to such account that such person may have against the Company or any Employer.

6.4 Nonassignability. No amount deferred under the Plan or any amount credited to an account shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment, and any attempt to transfer or encumber the same shall be void, other than pursuant to a qualified domestic relations order as defined in Title I of ERISA.

6.5 Amendment of the Plan. The Committee may, in its sole discretion and without the consent of any Participant or Beneficiary, amend the Plan at any time and in any manner by duly adopted resolutions; provided, however, that no amendment shall reduce the amount credited to any account of any Participant immediately prior to such amendment and no amendment will be permitted which would result in taxation of Participants pursuant to Section 409A.

6.6 Withdrawal by an Employer; Termination of the Plan. Each Employer may, in its sole discretion without the consent of any Participant or Beneficiary, terminate its participation in the Plan at any time by giving written notice thereof to the Committee and each Participant employed by such Employer. Termination of participation by an Employer shall not affect the time of payment of the Participant’s Account. The Company may, in its sole discretion, terminate the Plan without the consent of, or notification to, any person. Termination of the Plan shall not affect the time of payment of the Participant’s Account unless the Plan is terminated under circumstances which would permit the immediate payment to Participants of all amounts deferred under the Plan in compliance with Treasury Regulation 1.409A-3(j)(ix), in which case each Participant’s Account shall be paid out in full in a lump sum within 30 days following the date of the termination of the Plan.

6.7 Change in Control. If, following a Change in Control, as hereinafter defined, a Participant determines in good faith that the Company or an Employer has failed to comply with any of its obligations under the Plan or, if the Company or any other person takes any action to declare the Plan void or unenforceable or institutes any litigation or other legal action designed to deny or diminish or to recover from any Participant the benefits intended to be provided hereunder, then the Company irrevocably authorizes such Participant to retain counsel of his or her choice at the expense of the Company to represent such Participant in connection with the initiation or defense of any litigation or other legal action, whether by or against the Company or an Employer, or any director, officer, stockholder or other person affiliated with the Company or such Employer, or any successor thereto in any jurisdiction. Reimbursements to Participants under this Section 6.7, if any, shall be made not later than the last day of the Participant’s taxable year following the year in which the Participant incurs the reimbursable expense. For purposes of this Section, a “Change in Control” shall mean:

(i) Approved Transaction. An action of the Board (or, if approval of the Board is

 

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not required as a matter of law, the stockholders of the Company) approving (a) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of Common Stock would be converted into cash, securities or other property, other than a Merger, or (b) any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or (c) the adoption of any plan or proposal for the liquidation or dissolution of the Company;

(ii) Control Purchase. The purchase by any person (as such term is defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation or other entity (other than the Company or any employee benefit plan sponsored by an Employer) of any Common Stock of the Company (or securities convertible into the Company’s Common Stock) for cash, securities or any other consideration pursuant to a tender offer or exchange offer, without the prior consent of the Board and, after such purchase, such person shall be the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20 percent or more of the combined voting power of the then outstanding securities of the Company ordinarily (and apart from rights accruing under special circumstances) having the right to vote in the election of directors (calculated as provided in Section (d) of such Rule 13d-3 in the case of rights to acquire the Company’s securities);

(iii) Board Change. A change in the composition of the Board during any period of two consecutive years, such that individuals who at the beginning of such period constitute the entire Board shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election by the Company’s stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; or

(iv) Other Transactions. The occurrence of such other transactions involving a significant issuance of voting stock or change in Board composition that the Board determines to be a Change in Control for purposes of the Plan.

6.8 No Contractual Rights to Employment. Nothing in the Plan shall be interpreted as conferring any right on any employee to remain employed by an Employer for any stated period of time or otherwise change the employee’s employment relationship with his or her Employer from an employment at will relationship.

6.9 Severability. If a provision of the Plan shall be held illegal or invalid, the illegality or invalidity shall not affect the remaining parts of the Plan and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included in the Plan.

6.10 Tax Withholding; Other Tax Matters. Any payment required under the Plan shall be subject to all requirements of the law with regard to income and employment withholding taxes, filings, and making of reports, and each Employer and Participant shall use its or his or her best efforts to satisfy promptly all such requirements, as applicable. For purposes of this Plan, a Participant’s employment with the Company will not be treated as terminated unless and until such termination of employment constitutes a “separation from service” for purposes of Section

 

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409A of the Code. It is the intention of the Company that the provisions of the Plan not result taxation of Participants under Section 409A of the Code and the regulations and guidance promulgated thereunder and that the Plan shall be construed in accordance with such intention.

6.11 Applicable Law. The Plan and all rights hereunder and all determinations made and actions taken pursuant thereto, to the extent not otherwise governed by the Code or the laws of the United States, shall be governed by the laws of the State of Delaware and construed in accordance therewith without giving effect to the principles of conflicts of laws.

 

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This excerpt taken from the HNT 10-Q filed May 9, 2008.

MISCELLANEOUS

SUBPART 3.1 Instrument Pursuant to Participation Agreement. This Amendment is executed pursuant to the Participation Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Participation Agreement.

SUBPART 3.2 Counterpart. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.

SUBPART 3.3 Governing Law. THIS AMENDMENT IS GOVERENED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS WITH THE EXCEPTION OF SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK.

SUBPART 3.4 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 3.5 General. Except as amended hereby, the Participation Agreement shall continue in full force and effect.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the Participation Agreement as of the date first above written.

 

HEALTH NET FUNDING, INC.
By:   /s/ Bret Morris
  Name:   Bret Morris
  Title:   Vice President
HEALTH NET, INC.
By:   /s/ Linda V. Tiano
  Name:   Linda V. Tiano
  Title:   General Counsel and Secretary
LODGEMORE HOLDINGS INC.
By:   /s/ Kieran O’Donnell
  Name:   Kieran O’Donnell
  Title:   Director
ING BANK N.V.
By:   /s/ Albert Jan Visser
  Name:   Albert Jan Visser
  Title:   Managing Director
By:   /s/ Beatrice Petit-Yvelin
  Name:   Beatrice Petit-Yvelin
  Title:   Director
HEALTH NET FINANCING, L.P.
  By Health Net Funding, Inc., as General Partner
  By:   /s/ Bret Morris
  Name:   Bret Morris
  Title:   Vice President

Signature Page to First Amendment to Participation Agreement

This excerpt taken from the HNT 8-K filed Dec 20, 2007.
MISCELLANEOUS
 
Section 18.01.  Counterparts.
 
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
 
Section 18.02.  Further Assurances.
 
Each of the parties hereto (other than Credit Risk Bank) agrees to cooperate and take such further action and to execute and deliver such additional instruments and documents as any other party hereto may from time to time reasonably request for the purposes of giving effect to the terms of this Agreement or any other Transaction Document at the cost of the requesting party.
 

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Section 18.03.  Amendments.
 
This Agreement may only be amended or varied with the consent in writing of each of the parties hereto and no party hereto shall have any right (whether contractual, in common law or in equity) to rely on an amendment to or variation of this Agreement unless such amendment or variation has been so consented to.
 
Section 18.04.  Governing Law.
 
THIS AGREEMENT IS GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS WITH THE EXCEPTION OF SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK.
 
Section 18.05.  Submission to Jurisdiction and Service of Process.
 
(a)  Each of the parties irrevocably agrees that the United States District Court for the Southern District of New York, and to the extent such court does not have jurisdiction, the competent court of the State of New York in Manhattan, are to have non-exclusive in personam jurisdiction to settle any disputes which may arise out of or in connection with any Transaction Document and that accordingly any actions, suits, litigation or proceedings (any of the foregoing, a "Proceeding") arising out of or in connection with any Transaction Document may be brought in such courts and each of the parties hereto irrevocably submits to the jurisdiction of such courts.
 
(b)  Each of the parties irrevocably waives any objection which it may have now or hereafter to the laying of the venue of any Proceedings in any such court as is referred to in this Section 18.05 and any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agrees that, to the extent permitted by applicable law, a judgment in any Proceedings brought in such courts shall be conclusive and binding upon it and enforcement thereof may be sought in the courts of any other jurisdiction.
 
(c)  Each party hereto hereby agrees that service of process by prepaid recorded delivery or registered mail, or any other form equivalent thereto (or, in the alternative, by any other means sufficient under applicable law) at the addresses set forth in Article XVI shall be valid and sufficient for all purposes and each party hereto hereby waives to the fullest extent it may effectively do so any challenges to the validity of service of process if service is given in accordance herewith.
 
Section 18.06.  Expenses; Default Rate.
 
Any payments payable pursuant to this Agreement or any other Transaction Document which are overdue shall accrue interest at the Default Rate from (and including) the date when due to (but excluding) the date on which paid, and such interests shall be calculated on the basis of a 360 day year and the actual number of days elapsed.
 

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Section 18.07.  Entire Agreement.
 
This Agreement and the other Transaction Documents contain the entire understanding of the parties hereto with respect to the subject matter contained herein and therein, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the parties, oral or written, regarding such subject matter.
 
Section 18.08.  Severability.
 
If any term, provision, covenant, or condition of this Agreement, or the application thereof to any party or circumstance, is held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants and conditions hereof will continue in full force and effect as if this Agreement had been executed with the invalid or unenforceable portion eliminated, so long as this Agreement as so modified continues to express, without material change, the original intentions of each party hereto as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits or expectations of the parties hereto.  Each party hereto shall endeavor in good faith negotiations to replace the prohibited or unenforceable provision with a valid provision, the economic effect of which comes as close as possible to the prohibited or unenforceable provision.
 
Section 18.09.  Waiver of Trial by Jury.
 
This excerpt taken from the HNT 10-Q filed Nov 7, 2006.

MISCELLANEOUS

SUBPART 4.1 Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, after giving effect to this Amendment, (a) no Default or Event of Default exists under the Existing Bridge Loan Agreement and (b) the representations and warranties set forth in Article V of the Existing Bridge Loan Agreement (i) that contain a materiality qualification are true and correct on and as of the date hereof, subject to the limitations set forth therein, as if made on and as of such date (except to the extent such representations and warranties expressly relate to another date in which case such representations and warranties shall be true and correct as of such date) and (ii) that do not contain a materiality qualification are true and correct in all material respects on and as of the date hereof, subject to the limitations set forth therein, as if made on and as of such date (except to the extent such representations and warranties expressly relate to another date in which case such representations and warranties shall be true and correct in all material respects as of such date).

SUBPART 4.2 Cross-References. References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.

SUBPART 4.3 Instrument Pursuant to Existing Bridge Loan Agreement. This Amendment is executed pursuant to the Existing Bridge Loan Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Existing Bridge Loan Agreement.


SUBPART 4.4 References in Other Loan Documents. At such time as this Amendment shall become effective pursuant to the terms of Subpart 3.1, all references to the “Bridge Loan Agreement” shall be deemed to refer to the Bridge Loan Agreement as amended by this Amendment.

SUBPART 4.5 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 or other electronic means shall be effective as an original and shall constitute a representation that an original shall be delivered.

SUBPART 4.6 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 4.7 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 4.8 General. Except as amended hereby, the Existing Bridge Loan Agreement and all other loan documents shall continue in full force and effect.

[Remainder of Page Intentionally Left Blank]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the Bridge Loan Agreement as of the date first above written.

 

BORROWER:    

HEALTH NET, INC.,

a Delaware corporation

    By:   /s/ Wisdom Lu
      Name:   Wisdom Lu
      Title:   Treasurer


ADMINISTRATIVE AGENT:     THE BANK OF NOVA SCOTIA
    By:   /s/ V.H. Gibson
      Name:   V.H. Gibson
      Title:   Assistant Agent


LENDER:     THE BANK OF NOVA SCOTIA
    By:   /s/ V.H. Gibson
      Name:   V.H. Gibson
      Title:   Assistant Agent
This excerpt taken from the HNT 10-Q filed Aug 7, 2006.

MISCELLANEOUS

SECTION 3.01. Reference to and Effect on the Indenture. Each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this First Supplemental Indenture unless the context otherwise requires. The Indenture, as supplemented by this First Supplemental Indenture, shall be read, taken and construed as one and the same instrument. Except as specifically amended above, the Indenture shall remain in full force and effect and is hereby ratified and confirmed.

These excerpts taken from the HNT 8-K filed Jun 29, 2006.

MISCELLANEOUS

SECTION 3.01. Reference to and Effect on the Indenture. Each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this First Supplemental Indenture unless the context otherwise requires. The Indenture, as supplemented by this First Supplemental Indenture, shall be read, taken and construed as one and the same instrument. Except as specifically amended above, the Indenture shall remain in full force and effect and is hereby ratified and confirmed.

MISCELLANEOUS

SUBPART 5.1 Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, after giving effect to this Amendment, (a) no Default or Event of Default exists under the Existing Credit Agreement and (b) the representations and warranties set forth in Article V of the Existing Credit Agreement (i) that contain a materiality qualification are true and correct on and as of the date hereof, subject to the limitations set forth therein, as if made on and as of such date (except to the extent such representations and warranties expressly relate to another date in which case such representations and warranties shall be true and correct as of such date) and (ii) that do not contain a materiality qualification are true and correct in all material respects on and as of the date hereof, subject to the limitations set forth therein, as if made on and as of such date (except to the extent such representations and warranties expressly relate to another date in which case such representations and warranties shall be true and correct in all material respects as of such date).

SUBPART 5.2 Cross-References. References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.

SUBPART 5.3 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 5.4 References in Other Loan Documents. At such time as this Amendment shall become effective pursuant to the terms of Subpart 4.1, all references to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended by this Amendment.

SUBPART 5.5 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 5.6 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 5.7 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 5.8 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 Amendment to the Credit Agreement as of the date first above written.

 

BORROWER:     HEALTH NET, INC.,
    a Delaware corporation
      By:     
     

Name:

    
     

Title:

    
       


ADMINISTRATIVE AGENT:     BANK OF AMERICA, N.A.
      By:     
     

Name:

    
     

Title:

    


LENDERS:    

BANK OF AMERICA, N.A., as L/C Issuer,

Swing Line Lender as a Lender

      By:     
     

Name:

 
     

Title:

 


[                                         ],
By:     
Name:  
Title:  
This excerpt taken from the HNT DEF 14A filed Apr 17, 2006.

Miscellaneous

 

  22. Meet periodically with the general counsel, and outside counsel when appropriate, to review legal and regulatory matters, including (a) any matters that may have a material impact on the financial statements of Health Net and (b) any matters involving potential or ongoing material violations of law or breaches of fiduciary duty by Health Net or any of its directors, officers, employees or agents or breaches of fiduciary duty to Health Net;

 

  23. Prepare the report required by the rules of the SEC to be included in Health Net’s annual proxy statement;

 

  24. Review Health Net’s policies relating to the ethical handling of conflicts of interest and review past or proposed transactions between Health Net and members of management as well as policies and procedures with respect to officers’ expense accounts and perquisites, including the use of corporate assets. The Committee shall consider the results of any review of these policies and procedures by Health Net’s independent auditors;

 

  25. (a) Obtain reports regarding the performance of Health Net’s program to monitor compliance with Health Net’s Code of Business Conduct, (b) make all necessary inquiries of management, Health Net’s internal audit function and the independent auditors concerning established standards of conduct and performance, and deviations therefrom (which inquiries in respect of management other than the President and Chief Executive Officer shall be made through the President and Chief Executive Officer, and which inquiries in respect of the President and Chief Executive Officer shall be made through the Board), (c) review reports on final actions taken under the Code of Business Conduct and on types and categories of pending matters under the Code of Business Conduct and (d) meet periodically with Health Net’s Compliance Officer to discuss compliance with the Code of Business Conduct;

 

  26. Establish procedures for (a) the receipt, retention and treatment of complaints received by Health Net regarding accounting, internal accounting controls or auditing matters, and (b) the confidential, anonymous submission by employees of Health Net of concerns regarding questionable accounting or auditing matters;

 

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  27. Establish procedures for the receipt, retention and treatment of reports of evidence of a material violation made by attorneys appearing and practicing before the SEC in the representation of Health Net or any of its subsidiaries, or reports made by Health Net’s chief executive officer or general counsel in relation thereto;

 

  28. As requested by the Board from time to time, review with management significant financial matters affecting Health Net, whether or not related to a review of the quarterly or annual financial statements (which reviews may include, among other things, discussion of such matters as Health Net’s interim operating results versus planned results, management’s plan regarding Health Net’s business combination strategies, regulatory audit results or Health Net’s capital financing alternatives);

 

  29. Review the audit results of audits conducted by governmental and regulatory agencies (e.g., Internal Revenue Service, Centers for Medicare & Medicaid Services, Department of Managed Health Care and various State Department(s) of Insurance) and external auditors engaged for specific purposes;

 

  30. Report regularly to the Board on its activities, as appropriate. In connection therewith, the Committee should review with the Board any issues that arise with respect to the quality or integrity of Health Net’s financial statements, Health Net’s compliance with legal or regulatory requirements, the performance and independence of Health Net’s independent auditors, or the performance of the internal audit function; and

 

  31. Perform such additional activities, and consider such other matters, within the scope of its responsibilities, as the Committee or the Board deems necessary or appropriate.

 

This excerpt taken from the HNT 10-Q filed Aug 9, 2005.

MISCELLANEOUS

 

SUBPART 4.1 Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, after giving effect to this Amendment, (a) no Default or Event of Default exists under the Credit Agreement and (b) the representations and warranties set forth in Article V of the Existing Credit Agreement are, subject to the limitations set forth therein, true and correct as of the date hereof (except for those which expressly relate to an earlier date).


SUBPART 4.2 Cross-References. References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.

 

SUBPART 4.3 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 4.4 References in Other Loan Documents. At such time as this Amendment shall become effective pursuant to the terms of Subpart 3.1, all references to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended by this Amendment.

 

SUBPART 4.5 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 4.6 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 4.7 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 4.8 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 Amendment to the Credit Agreement as of the date first above written.

 

BORROWER:      

HEALTH NET, INC.,

a Delaware corporation

        By: /s/ Wisdom Lu                                    
        Name: Wisdom Lu
       

Title: Vice President, Treasurer and

Chief Investment Officer


ADMINISTRATIVE AGENT:       BANK OF AMERICA, N.A.
        By:      

/s/    KEVIN L. AHART


        Name:       Kevin L. Ahart
        Title:       Assistant Vice President


LENDERS:      

BANK OF AMERICA, N.A., as L/C Issuer,

Swing Line Lender as a Lender

       

By:/s/ Joseph L. Coran


        Name: Joseph L. Coran
        Title: Senior Vice President


CITICORP USA, INC.

By: /s/ Peter C. Bickford


Name: Peter C. Bickford

Title: Vice President


JPMORGAN CHASE BANK, N.A.
By:  

/s/ DAWN LEE LUM

Name:

 

Dawn Lee Lum

Title:

 

Vice President


THE BANK OF NEW YORK
By:  

/s/ JONATHAN ROLLINS

Name:

 

Jonathan Rollins, CFA

Title:

 

Vice President


UNION BANK OF CALIFORNIA, N.A.
By:  

/s/ PHILIP M. ROESNOR

Name:

 

Philip M. Roesnor

Title:

 

Vice President


THE BANK OF NOVA SCOTIA
By:  

/s/ M.D. Smith

Name: M.D. Smith
Title: Agent Operations
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