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<PAGE>
EXECUTION COPY
U.S. $2,000,000,000
AMENDED AND RESTATED 5-YEAR LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT
Dated as of April 25, 2005
Among
THE TRAVELERS LIFE AND ANNUITY REINSURANCE COMPANY
as Account Party
and
METLIFE, INC.
as Guarantor
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Administrative Agents
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Paying Agent
and
BNP PARIBAS
and
LLOYDS TSB BANK PLC
as Co-Syndication Agents
and
DANSKE BANK A/G
as Documentation Agent
------------------------------------------------------------------------------
CITIGROUP GLOBAL MARKETS INC.
and
WACHOVIA CAPITAL MARKETS, LLC
as Joint Lead Arrangers and Joint Bookrunners
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined
Terms..........................................2
SECTION 1.02. Computation of Time
Periods...................................15
SECTION 1.03. Accounting
Terms..............................................15
ARTICLE II
AMOUNTS AND TERMS OF THE L/C DISBURSEMENTS AND LETTERS OF
CREDIT
SECTION 2.01. Syndicated Letters of
Credit..................................15
SECTION 2.02. Participated Letters of
Credit................................19
SECTION 2.03.
Fees..........................................................23
SECTION 2.04. Termination or Reduction of the
Commitments...................24
SECTION 2.05. Repayment of L/C Disbursements and Letter of
Credit Drawings..24
SECTION 2.06. Existing Letters of
Credit....................................25
SECTION 2.07.
Interest......................................................25
SECTION 2.08. Interest Rate
Determination...................................25
SECTION 2.09. Collateralization/Prepayments of Reimbursement
Obligations....25
SECTION 2.10. Increased
Costs...............................................26
SECTION 2.11. Payments and
Computations.....................................27
SECTION 2.12.
Taxes.........................................................28
SECTION 2.13. Sharing of Payments,
Etc......................................29
SECTION 2.14. Evidence of
Debt..............................................30
SECTION 2.15. Use of
Proceeds...............................................30
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ISSUANCES
SECTION 3.01.
Conditions....................................................30
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SECTION 3.02. Conditions Precedent to Each
Issuance.........................32
SECTION 3.03. Reallocation and Assignment of Obligations with
Respect to
Existing Letters of
Credit....................................32
SECTION 3.04. Effect of this
Agreement......................................33
SECTION 3.05. Release of Existing
Guarantor.................................33
SECTION 3.06. Determinations Under Section
3.01.............................33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Account
Party...........33
SECTION 4.02. Representations and Warranties of the
Guarantor...............35
ARTICLE V
COVENANTS OF THE ACCOUNT PARTY And the Guarantor
SECTION 5.01. Affirmative
Covenants.........................................37
SECTION 5.02. Negative
Covenants............................................39
SECTION 5.03. Financial
Covenants...........................................42
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of
Default.............................................42
SECTION 6.02. Actions in Respect of Letters of Credit upon
Default..........43
ARTICLE VII
GUARANTY
SECTION 7.01.
Guaranty......................................................44
SECTION 7.02. Guaranty
Absolute.............................................44
SECTION 7.03. Waivers and
Acknowledgments...................................46
SECTION 7.04.
Subrogation...................................................46
SECTION 7.05.
Subordination.................................................47
SECTION 7.06. Continuing Guaranty;
Assignments..............................47
ii
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ARTICLE VIII
THE AGENT, etc.
SECTION 8.01. Authorization and
Action......................................48
SECTION 8.02. Reliance,
Etc.................................................48
SECTION 8.03. Wachovia and
Affiliates.......................................48
SECTION 8.04. Lender Credit
Decision........................................49
SECTION 8.05.
Indemnification...............................................49
SECTION 8.06. Successor
Agent...............................................50
SECTION 8.07. No
Responsibility.............................................50
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments,
Etc...............................................50
SECTION 9.02. Notices,
Etc..................................................51
SECTION 9.03. No Waiver; Remedies; Entire
Agreement.........................52
SECTION 9.04. Costs and
Expenses............................................52
SECTION 9.05. Right of
Set-off..............................................53
SECTION 9.06. Binding
Effect................................................53
SECTION 9.07. Assignments and
Participations................................53
SECTION 9.08.
Confidentiality...............................................56
SECTION 9.09. Governing Law. Agreement, and the Letters of
Credit..........56
SECTION 9.10. Execution in
Counterparts.....................................56
SECTION 9.11. Jurisdiction,
Etc.............................................57
SECTION 9.12. No Liability of the Issuing
Banks.............................57
SECTION 9.13. WAIVER OF JURY
TRIAL..........................................58
SECTION 9.14. Patriot Act
Notice............................................58
iii
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Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.06 - Existing Letters of Credit
Schedule 4.02(g) - Disclosed Matters
Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Syndicated Letter of Credit
Exhibit B-2 - Form of Participated Letter of Credit
Exhibit C - Form of Departing Lender Consent
iv
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AMENDED AND RESTATED 5-YEAR LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT
Dated as of April 25, 2005
THIS AMENDED AND RESTATED FIVE-YEAR LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT, dated as of April 25, 2005, is among
THE TRAVELERS LIFE
AND ANNUITY REINSURANCE COMPANY, a South Carolina corporation
(the "Account
Party"), METLIFE, INC., a Delaware corporation (the
"Guarantor"), the banks,
financial institutions and other institutional lenders (the
"Initial Lenders")
listed on the signature pages hereof, CITIBANK, N.A.
("Citibank") and WACHOVIA
BANK, NATIONAL ASSOCIATION ("Wachovia"), as co-administrative
agents (in such
capacity, the "Co-Administrative Agents"), BNP PARIBAS and
LLOYDS TSB BANK PLC,
as co-syndication agents (in such capacity, the "Co-Syndication
Agents"), DANSKE
BANK A/G, as documentation agent (in such capacity, the
"Documentation Agent"),
Wachovia, as coordination and paying agent (in such capacity,
and together with
any successor duly appointed in accordance with Section 8.06,
the "Agent") for
the Lenders (as hereinafter defined), and CITIGROUP GLOBAL
MARKETS INC. and
WACHOVIA CAPITAL MARKETS, LLC, as joint lead arrangers and joint
bookrunners (in
such capacity, the "Arrangers").
W I T N E S S E T H:
WHEREAS, pursuant to the 5-Year Letter of Credit and
Reimbursement
Agreement, dated as of November 30, 2004 (as amended or
otherwise modified prior
to the date hereof, the "Existing L/C Agreement"), among the
Account Party,
Citigroup Insurance Holding Company, a Georgia corporation, as
guarantor (the
"Existing Guarantor"), certain banks, financial institutions and
other
institutional lenders from time to time party thereto (the
"Existing Lenders"),
Wachovia and Citibank, as co-administrative agents, and
Wachovia, as
coordination and paying agent, the Existing Lenders issued
syndicated letters of
credit (the "Existing Letters of Credit") for the account of the
Account Party;
WHEREAS, the Account Party desires to, among other things,
continue
the Existing Letters of Credit as Letters of Credit (terms not
defined in these
recitals being used as defined in Article I of this Agreement)
under this
Agreement, to obtain commitments to issue additional Letters of
Credit under
this Agreement and to substitute the Guarantor for the Existing
Guarantor and
release the Existing Guarantor;
WHEREAS, the Account Party has requested that (a) the Existing
L/C
Agreement be amended and restated in its entirety to become
effective and
binding on the Account Party and the Guarantor pursuant to the
terms of this
Agreement, and the Lenders (including certain of the Existing
Lenders) have
agreed (subject to the terms of this Agreement) to amend and
restate the
Existing L/C Agreement in its entirety to read as set forth in
this Agreement
and (b) the Existing Guarantor be released from all of its
obligations under the
Existing L/C Agreement and from any obligation that may arise
hereunder and be
replaced in all respects by the Guarantor under this
Agreement;
NOW, THEREFORE, the parties hereto agree to amend and restate
the
Existing L/C Agreement, and the Existing L/C Agreement is hereby
amended and
restated in its entirety, as follows:
<PAGE>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the
following terms shall have the following meanings (such meanings
to be equally
applicable to both the singular and plural forms of the terms
defined):
"Account Party" has the meaning given to it in the preamble
hereto.
"Acquisition" means the acquisition by the Guarantor of all of
the
outstanding shares of capital stock (or equivalent equity
interests) of
the Beneficiaries and their respective Subsidiaries (including
the Account
Party).
"Acquisition Agreement" means the Acquisition Agreement dated as
of
January 31, 2005 (as the same may be amended or otherwise
modified)
between Citigroup and the Guarantor.
"Affiliate" means, as to any Person, any other Person that,
directly
or indirectly, controls, is controlled by or is under common
control with
such Person. For purposes of this definition, the term
"control"
(including the terms "controlling", "controlled by" and "under
common
control with") of a Person means the possession, direct or
indirect, of
the power to vote 25% or more of the Voting Stock of such Person
or to
direct or cause the direction of the management and policies of
such
Person, whether through the ownership of Voting Stock, by
contract or
otherwise.
"Agent" has the meaning given to it in the preamble hereto.
"Agent's Account" means the account of the Agent maintained
by
the Agent at its office at Charlotte, NC, ABA Number:
053000219,
Account Name: Travelers Life and Annuity Reinsurance Company,
Account
Number: 5000000061073 Attention: Agency Services.
"Agreement" means the Existing L/C Agreement, as amended and
restated by this Amended and Restated 5-Year Letter of Credit
and
Reimbursement Agreement and as it may be further amended,
amended and
restated, supplemented or otherwise modified from time to
time.
"Applicable Margin" means, as of any date, the Facility Fee or
the
Letter of Credit Fee, as applicable, expressed as a percentage
per annum
determined by reference to the Public Debt Rating of the
Guarantor in
effect on such date as set forth below:
<TABLE>
<CAPTION>
PUBLIC DEBT RATING FACILITY FEE LETTER OF CREDIT FULLY UTILIZED
COST
S&P/MOODY'S FEE
<S> <C> <C> <C>
Level 1 0.05% 0.20% 0.25%
A+ or A1 or above
Level 2 0.07% 0.28% 0.35%
A or A2
Level 3 0.08% 0.32% 0.40%
A- or A3
Level 4 0.09% 0.41% 0.50%
BBB+ or Baa1
Level 5 0.11% 0.64% 0.75%
Lower than Level 4
</TABLE>
2
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provided that, until the first financial reporting date pursuant
to
Section 5.01(g), the Applicable Margin shall be determined by
reference to
Level 2.
"Arrangers" has the meaning given to it in the preamble
hereto.
"Asset Securitization" means a public or private transfer of
installment receivables, credit card receivables, lease
receivables,
mortgage loan receivables, policyholder loan receivables or any
other type
of secured or unsecured financial assets, which transfer is
recorded as a
sale in accordance with GAAP as of the date of such
transfer.
"Assignment and Acceptance" means an assignment and
acceptance
entered into by a Lender and an Eligible Assignee, and accepted
by the
Agent, in substantially the form of Exhibit A hereto or such
other form
reasonably acceptable to the Agent and the Account Party and the
Guarantor
(such approvals not to be unreasonably withheld or delayed).
"Attributable Debt" means, on any date, in respect of any
capital
lease of any Person, the capitalized amount thereof that would
appear on a
balance sheet of such Person prepared as of such date in
accordance with
GAAP.
"Available Amount" of any Letter of Credit means, at any time,
the
maximum amount available to be drawn under such Letter of Credit
at such
time (assuming compliance at such time with all conditions to
drawing),
such amount sometimes being referred to as the face amount.
"Availability Period" means the period from and including
the
Closing Date to and including one hundred eighty (180) days
prior to the
scheduled Termination Date.
"Bankruptcy Law" means any proceeding of the type referred to
in
Section 6.01(e) or Title 11, U.S. Code, or any similar foreign,
federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in
effect
from time to time, which rate per annum shall at all times be
equal to the
higher of:
(a) the rate of interest established by Wachovia in
Charlotte,
North Carolina, from time to time, as its prime rate for
dollars
loaned in the United States of America; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
The Base Rate is an index rate and is not necessarily intended
to be
the lowest or best rate of interest charged to customers in
connection
with extensions of credit or to other banks.
"Beneficiaries" means The Travelers Life and Annuity Company
("TLAC"), a Connecticut corporation, and The Travelers Insurance
Company
("TIC"), a Connecticut corporation, as separate beneficiaries of
separate
letters of credit or additional or successor beneficiaries which
are
wholly owned by the Guarantor or its successor and which are
designated in
writing as "Beneficiaries" hereunder by notice from the Account
Party to
the Agent and approved by the Agent.
"Business Day" means a day of the year on which banks are
not
required or authorized by law to close in either New York City
or
Charlotte, North Carolina.
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"Change of Control" means (a) the acquisition of ownership,
directly
or indirectly, beneficially or of record, by any Person or group
(within
the meaning of the Securities Exchange Act of 1934 and the rules
of the
Securities and Exchange Commission thereunder as in effect on
the date
hereof), of shares representing more than 25% of the Voting
Stock of the
Guarantor, or (b) occupation of a majority of the seats (other
than vacant
seats) on the board of directors of the Guarantor by Persons who
were
neither (i) nominated by the board of directors of the Guarantor
nor (ii)
appointed by directors so nominated.
"Citigroup" means Citigroup Inc., a Delaware corporation.
"Closing Date" means the date the Acquisition is consummated
pursuant to the Acquisition Agreement and in accordance with
applicable
law, such date in any event to occur on or before December 31,
2005. If
the Effective Date shall have occurred prior thereto, on the
Closing Date
the Existing Letters of Credit shall be deemed issued under this
Agreement
and new Letters of Credit may be issued hereunder on and after
such date
(subject to compliance with Sections 3.01(b) and 3.02).
"Co-Administrative Agents" has the meaning given to it in
the
preamble hereto.
"Commitment" means a Participated Commitment or a Syndicated
Commitment.
"Company Action Level" means, at any time the Risk Based
Capital
Ratio is to be determined, 200% of the amount of the Authorized
Control
Level Risk Based Capital of TIC set forth in the most recent
annual
Statutory Statement of TIC. The Authorized Control Level Risk
Based
Capital of TIC shall be computed in the manner from time to
time
prescribed by the Insurance Department of the State of
Connecticut for
inclusion in the annual Statutory Statement of TIC to such
Insurance
Department. Such Authorized Control Level Risk-Based Capital
currently
appears on page 28 of such Statutory Statement, line 31.
"Consolidated" refers to the consolidation of accounts in
accordance
with GAAP.
"Consolidated Net Worth" means the consolidated
stockholders'
equity, determined in accordance with GAAP, of the Guarantor and
its
Consolidated Subsidiaries.
"Consolidated Subsidiary" means, with respect to any Person
(the
"parent") at any date, any corporation, limited liability
company,
partnership, association or other entity the accounts of which
would be
consolidated with those of the parent in the parent's
consolidated
financial statements if such financial statements were prepared
in
accordance with GAAP as of such date.
"Co-Syndication Agents" has the meaning given to it in the
preamble
hereto.
"Credit Exposure" means, with respect to any Lender at any time,
the
sum of (a) such Lender's L/C Exposure at such time and (b) the
aggregate
amount of all Reimbursement Obligations outstanding to such
Lender at such
time (after giving effect to any payments made by such Lender to
the Agent
under Section 2.01(i) or to the Issuing Bank under Section
2.02(e)).
"Debt" of any Person means, without duplication, (a) all of
the
Person's obligations (i) for borrowed money, (ii) evidenced by
bonds,
debentures, notes or other similar instruments, (iii) to pay the
deferred
purchase price of property or services, except trade accounts
payable
arising in the ordinary course of business, (b) all obligations
of such
Person as lessee under leases that have been or should be, in
accordance
with GAAP, recorded as capital leases, (c) all
4
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obligations, contingent or otherwise, of such Person in respect
of
acceptances, letters of credit or similar extensions of credit,
and (d)
all of such Person's obligations secured by a Lien on property
owned or
being purchased by such Person (including indebtedness arising
under
conditional sales or other title retention agreements), whether
or not
such indebtedness shall have been assumed by such Person or is
limited in
recourse, and (e) all Debt of others referred to in clauses (a)
through
(d) above and other payment obligations, but not including
payment
obligations excluded from "Debt" pursuant to the following
sentence
(collectively, "Guaranteed Debt"), guaranteed directly or
indirectly in
any manner by such Person. Debt shall not include any payment
of
obligations arising under a repurchase, securities loan or
similar
agreement except for the excess of (i) the payment obligations
for which
such Persons are liable under such agreement over (ii) the value
of the
collateral securing such payment obligations. The Debt of any
Person shall
include the Debt of any partnership or joint venture (other than
a joint
venture that is itself a corporation or limited liability
company) in
which such Person is a general partner or a joint venturer,
unless such
Debt is expressly non-recourse to such Person; the amount of any
capital
lease as of any date shall be deemed to be the amount of
Attributable Debt
in respect thereof as of such date.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that
notice be
given or time elapse or both.
"Departing Lender Consent" means a consent entered into by
an
Existing Lender and accepted by the Agent, in substantially the
form of
Exhibit C hereto.
"Disclosed Matters" means the actions, suits and proceedings and
the
environmental matters disclosed in Schedule 4.02(g).
"Documentation Agent" has the meaning given to it in the
preamble
hereto.
"Downgrade Account" has the meaning specified in Section
2.02(j)(i).
"Downgrade Event" means, with respect to any Lender with a
Participated Commitment, a reduction of the credit rating for
the senior
unsecured unsupported long-term debt of such Lender (or if no
such rating
exists, then a reduction of the long-term issuer credit rating
of such
Lender) by S&P or Moody's.
"Downgrade Notice" has the meaning specified in Section
2.02(j)(i).
"Downgraded Lender" means any Lender with a Participated
Commitment
which has a credit rating of less than A- (in the case of
S&P) or A3 (in
the case of Moody's) for its senior unsecured unsupported
long-term debt
or which does not have any credit rating on such debt from one
of S&P or
Moody's; provided that, if at any time such Lender has no such
senior
unsecured unsupported long-term debt rating from either rating
service but
does have a long-term issuer credit rating from either or both
services,
then such Lender shall not be considered a Downgraded Lender so
long as
such long-term issuer credit rating remains at or above A- (in
the case of
S&P) or A3 (in the case of Moody's), and provided further
that, if the
ratings established by S&P and Moody's shall fall within
different levels,
the Lender's credit rating for its senior unsecured unsupported
long-term
debt shall be based upon the higher rating unless such ratings
differ by
two or more levels, in which case the applicable level will be
deemed to
be one level below the higher of such levels.
"Effective Date" has the meaning specified in Section 3.01.
5
<PAGE>
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of
a
Lender; and (c) any other Person approved by the Agent,
Wachovia, as
Issuing Bank in the case of Participated Letters of Credit and
as issuing
Agent in the case of Syndicated Letters of Credit, and, unless
an Event of
Default has occurred and is continuing at the time any
assignment is
effected in accordance with Section 9.07, the Account Party and
the
Guarantor, in each case such approvals not to be unreasonably
withheld or
delayed; provided, however, that neither the Guarantor nor an
Affiliate of
the Guarantor shall qualify as an Eligible Assignee; provided
further,
however, that a Person must be a NAIC approved bank to qualify
as an
Eligible Assignee for Syndicated Letters of Credit.
"Environmental Laws" means all laws, rules, regulations,
codes,
ordinances, orders, decrees, judgments, injunctions, notices or
binding
agreements issued, promulgated or entered into by any
Governmental
Authority, relating in any way to the environment, preservation
or
reclamation of natural resources, the management, release or
threatened
release of any Hazardous Material or to health and safety
matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental
remediation, fines, penalties or indemnities), of the Guarantor
or any of
its Significant Subsidiaries directly or indirectly resulting
from or
based upon (a) violation of any Environmental Law, (b) the
generation,
use, handling, transportation, storage, treatment or disposal of
any
Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the
release or threatened release of any Hazardous Materials into
the
environment or (e) any contract, agreement or other consensual
arrangement
pursuant to which liability is assumed or imposed with respect
to any of
the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended from time to time, and the regulations promulgated
and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of
ERISA is a member of the Guarantor's controlled group, or under
common
control with the Guarantor, within the meaning of Section 414 of
the
Internal Revenue Code.
"ERISA Event" means: (a) the occurrence of a "reportable
event",
within the meaning of Section 4043 of ERISA, with respect to a
Plan
(unless the 30-day notice requirement with respect to such event
has been
waived or unless the event is based on a certain level of
unfunded vested
benefits, or the requirement to pay variable PBGC premiums,
provided that
the amount of unfunded vested benefits, when determined on a
FAS87 basis,
do not exceed $50,000,000); (b) the existence with respect to
any Plan of
an "accumulated funding deficiency" (as defined in Section 412
of the Code
or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an
application
for a waiver of the minimum funding standard with respect to any
Plan; (d)
the incurrence by the Guarantor or any of its ERISA Affiliates
of any
liability under Title IV of ERISA with respect to the
termination of any
Plan; (e) the receipt by the Guarantor or any ERISA Affiliate
from the
PBGC or a plan administrator of any notice relating to an
intention to
terminate any Plan or Plans or to appoint a trustee to
administer any
Plan; (f) the incurrence by the Guarantor or any of its ERISA
Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from
any Plan or Multiemployer Plan; or (g) the receipt by the
Guarantor or any
ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan
from MetLife or any ERISA Affiliate of any notice, concerning
the
imposition of Withdrawal Liability or a determination that a
Multiemployer
Plan is, or is expected to be, insolvent or in reorganization,
within the
meaning of Title IV of ERISA.
6
<PAGE>
"Eurocurrency Liabilities" has the meaning specified in
Regulation D
of the Board of Governors of the Federal Reserve System, as in
effect from
time to time.
"Events of Default" has the meaning specified in Section
6.01.
"Existing Guarantor" has the meaning specified in the first
recital
hereto.
"Existing L/C Agreement" has the meaning specified in the
first
recital hereto.
"Existing Lenders" has the meaning specified in the first
recital
hereto.
"Existing Letters of Credit" has the meaning specified in the
first
recital hereto.
"Federal Funds Rate" means, as of any date, the weighted average
of
the rates on overnight federal funds transactions with the
members of the
Federal Reserve System arranged by federal funds brokers, as
published for
such day (or, if such day is not a Business Day, for the next
preceding
Business Day) by the Federal Reserve Bank of New York, or, if
such rate is
not so published for any day which is a Business Day, the
average of the
quotations for such day on such transactions received by the
Agent or its
Affiliate from three (3) federal funds brokers of recognized
standing
selected by the Agent or its Affiliate.
"Financial Officer" means the chief financial officer,
principal
accounting officer, treasurer, assistant treasurer or controller
of the
Guarantor.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any
state
or other political subdivision thereof, any agency,
authority,
instrumentality, regulatory body, court, administrative
tribunal, central
bank or other entity exercising executive, legislative,
judicial, taxing,
regulatory or administrative powers or functions of or
pertaining to
government.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Guarantor" shall have the meaning given to it in the
preamble
hereto.
"Guarantor Information" has the meaning specified in Section
9.08.
"Guaranty" means Article VII hereof and the obligations of
the
Guarantor thereunder, as may be amended, amended and
restated,
supplemented or otherwise modified from time to time.
"Hazardous Materials" means all explosive or radioactive
substances
or wastes and all hazardous or toxic substances, wastes or
other
pollutants, including petroleum or petroleum distillates,
asbestos or
asbestos containing materials, polychlorinated biphenyls, radon
gas,
infectious or medical wastes and all other substances or wastes
of any
nature regulated pursuant to any Environmental Law.
"Indemnified Costs" has the meaning specified in Section
8.05.
"Information Memorandum" means the information memorandum
dated
February 22, 2005 used in connection with the syndication of
the
Commitments.
"Initial Lenders" has the meaning given to it in the
preamble
hereto.
7
<PAGE>
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as
amended from time to time, and the regulations promulgated and
rulings
issued thereunder.
"Insurance Department" means the applicable Insurance
Regulatory
Authority of the state of domicile of an insurance company
responsible for
the regulation of said insurance company.
"Insurance Regulatory Authority" means, with respect to any
insurance company, the Insurance Department or similar
governmental
authority charged with regulating insurance companies or
insurance holding
companies, in its jurisdiction of domicile, and to the extent
that it has
regulatory authority over such insurance companies, in each
other
jurisdiction in which such insurance company conducts business
or is
licensed to conduct business.
"Issuing Bank" means (a) Wachovia, in its capacity as the issuer
of
the Participated Letters of Credit and an issuer of and "Agent"
(as
defined in the Syndicated Letters of Credit) for any Syndicated
Letter of
Credit issued hereunder, (b) each Lender which has an amount
greater than
$0 set forth under the column entitled "Syndicated Commitment"
opposite
its name on the signatures pages hereof or (c) any Eligible
Assignee to
which a portion of the Syndicated Commitment hereunder has been
assigned
pursuant to Section 9.07 so long as such Eligible Assignee
expressly
agrees to perform in accordance with their terms all of the
obligations
that by the terms of this Agreement are required to be performed
by it as
an Issuing Bank and notifies the Agent of its Lending Office
(which
information shall be recorded by the Agent in the Register), for
so long
as such Issuing Bank or Eligible Assignee, as the case may be,
shall have
a Syndicated Commitment. Each Issuing Bank and each assignee of
any
Issuing Bank shall satisfy the requirements of Conn. Gen
Statutes Sec.
38a-87 and related Regulation 38a-88-8.
"L/C Cash Deposit Account" means an interest bearing cash
deposit
account to be established and maintained by the Agent, over
which the
Agent shall have sole dominion and control, upon terms as may
be
satisfactory to the Agent.
"L/C Disbursement" means (a) with respect to any Participated
Letter
of Credit, a payment made by the Issuing Bank pursuant thereto
and (b)
with respect any Syndicated Letter of Credit, a payment made by
a Lender
pursuant thereto.
"L/C Disbursement Date" means, with respect to any Letter of
Credit,
the date any L/C Disbursement is made in accordance with the
terms of such
Letter of Credit.
"L/C Exposure" means, as to any Lender at any time, its share of
the
undrawn face amount of any Syndicated Letter of Credit at such
time,
together with its participation interest, if any, in the undrawn
face
amount of any Participated Letter of Credit at such time.
"L/C Related Documents" has the meaning specified in Section
2.05(b)(i).
"Lenders" means the Initial Lenders, each Issuing Bank and
each
Person that shall become a party hereto pursuant to Section
9.07(a).
"Lending Office" means, with respect to any Lender, the office
of
such Lender specified as its "Lending Office" opposite its name
on
Schedule I hereto or in the Assignment and Acceptance pursuant
to which it
became a Lender, or such other office of such Lender as such
Lender may
from time to time specify to the Account Party and the
Agent.
8
<PAGE>
"Letter of Credit Agreement" means the credit application on
Wachovia's standard form pursuant to Sections 2.01(b) and
2.02(b).
"Letters of Credit" means, collectively, Syndicated Letters
of
Credit and Participated Letters of Credit.
"LIBOR" means (a) for any period which is indeterminate in
length or
is under one month, the daily spot LIBOR rate as determined by
Wachovia,
and (b) for any period of one month or more, an interest rate
per annum
equal to the rate per annum obtained by dividing (i)(x) the rate
per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%)
appearing on
Telerate Page 3750 (or any successor page) as the London
interbank offered
rate for deposits in U.S. dollars for a period of such length,
or (ii) if
such rate is for any reason not available, the rate per annum
equal to the
rate that the Agent or its designee determines to be the rate or
the
arithmetic mean of rates at which Wachovia offers U.S. dollar
deposits for
a period of such length to first tier banks in the London
interbank
market, in each case, at or about 11:00 A.M. (London time) two
Business
Days prior to the first day of such period, by, in each case,
(ii) a
percentage equal to 100% minus the LIBOR Rate Reserve Percentage
for such
period.
"LIBOR Rate Reserve Percentage" means, for any period, the
reserve
percentage applicable two Business Days before the first day of
such
period under regulations issued from time to time by the Board
of
Governors of the Federal Reserve System (or any successor) for
determining
the maximum reserve requirement (including, without limitation,
any
emergency, supplemental or other marginal reserve requirement)
for a
member bank of the Federal Reserve System in New York City with
respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities
(or with respect to any other category of liabilities that
includes
deposits by reference to which the interest rate on LIBOR is
determined)
having a term equal to such period.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement,
including, without limitation, the lien or retained security
title of a
conditional vendor and any easement, right of way or other
encumbrance on
title to real property.
"Material Adverse Change" means any material adverse change in
(a)
the business, financial condition, or operations of the
Guarantor and its
Significant Subsidiaries taken as a whole, (b) the rights and
remedies of
the Agent or any Lender under this Agreement, (c) the ability of
the
Guarantor or the Account Party to perform its obligations under
this
Agreement or (d) the validity or enforceability of this
Agreement.
"Material Debt" means Debt of any Person (other than the Letters
of
Credit), or obligations in respect of one or more Swap
Contracts, in an
aggregate principal amount exceeding $300,000,000 (or its
equivalent in
any other currency). For purposes of determining Material Debt,
the
"principal amount" of the obligations of any Person in respect
of any Swap
Contract at any time shall be the maximum aggregate amount
(giving effect
to any netting agreements) that such Person would be required to
pay if
such Swap Contract were terminated at such time.
"MLIC" means Metropolitan Life Insurance Company, a New York
stock
life insurance company.
"Moody's" means Moody's Investors Service, Inc.
9
<PAGE>
"Multiemployer Plan" means a multiemployer plan, as defined
in
Section 4001(a)(3) of ERISA, to which the Guarantor or any ERISA
Affiliate
is making or accruing an obligation to make contributions, or
has within
any of the preceding five plan years made or accrued an
obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the
Guarantor or any ERISA Affiliate and at least one Person other
than the
Guarantor and the ERISA Affiliates or (b) was so maintained and
in respect
of which the Guarantor or any ERISA Affiliate could have
liability under
Section 4064 or 4069 of ERISA in the event such plan has been or
were to
be terminated.
"NAIC" means the National Association of Insurance Commissioners
or
any entity succeeding to its function of advising insurance
companies as
to the values to be assigned to invested assets of such
insurance
companies included within one or more categories of such
assets.
"Net Income" means, for any period, the aggregate of all
amounts
(including all amounts in respect of any extraordinary gains and
including
extraordinary losses) that would be included as net income on
the
consolidated financial statements of TIC and its Subsidiaries
for such
period determined on a consolidated basis in accordance with
GAAP.
"Notice of Issuance" means a Syndicated Letter of Credit
Notice
and/or a Participated Letter of Credit Notice.
"Participated Commitment" means, as to any Lender of
Participated
Letters of Credit, (a) the amount set forth opposite such
Lender's name on
the signature pages hereof as such Lender's "Participated
Commitment" or
(b) if such Lender has entered into any Assignment and
Acceptance, the
amount set forth for such Lender in the Register maintained by
the Agent
pursuant to Section 9.07(d), as such amount may be reduced
pursuant to
Section 2.04. It is understood that Wachovia, as fronting bank,
is
committed to issue all the Participated Letters of Credit, and
the other
Lenders with Participated Commitments have participation
interests in the
Participated Letters of Credit in accordance with Section
2.02(e). For the
avoidance of doubt, any amount deposited in the L/C Cash Deposit
Account
shall not alter any Lender's Participated Commitment
hereunder.
"Participated Letters of Credit" means the letters of credit
issued
under Section 2.02(a).
"Participated Letter of Credit Notice" has the meaning specified
in
Section 2.02(b).
"Participated Reimbursement Obligation" has the meaning given
to
such term in Section 2.02(f).
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and
Obstruct
Terrorism Act of 2001, Pub. L. 107-56, signed into law October
26,
2001, as such Act may be extended or amended.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure
proceeding shall
have been commenced: (a) Liens for taxes,
10
<PAGE>
assessments and governmental charges or levies to the extent not
required
to be paid under Section 5.01(b) hereof; (b) Liens imposed by
law, such as
bankers', materialmen's, mechanics', carriers', workmen's and
repairmen's
Liens and other similar Liens, in each case arising in the
ordinary course
of business securing obligations that are not overdue for a
period of more
than 30 days; (c) Liens on deposit accounts or securities
accounts,
including bankers' Liens and rights of setoff arising in the
ordinary
course of business; (d) pledges or deposits to secure
obligations under
workers' compensation laws or similar legislation or to secure
public or
statutory obligations; (e) easements, rights of way and other
encumbrances
on title to real property that do not render title to the
property
encumbered thereby unmarketable or materially adversely affect
the use of
such property for its present purposes; (f) Liens arising out of
deposits
of cash or securities with reinsurance trusts, ceding companies
or
insurance regulators in the ordinary course of business; and (g)
Liens on
deposits to secure the performance of bids, trade contracts,
leases,
statutory obligations, surety and appeal bonds, performance
bonds and
other obligations of a like nature, in each case in the ordinary
course of
business; provided that, in any event, Permitted Liens shall not
include
any Lien securing Debt.
"Person" means an individual, partnership, corporation
(including a
business trust), joint stock company, trust, unincorporated
association,
joint venture, limited liability company or other entity, or a
government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the rating that has
been
most recently announced by either S&P or Moody's, as the
case may be, as
the "senior unsecured debt rating" for the Guarantor or, if
either rating
agency shall have issued more than one such rating, the lowest
such rating
issued by such rating agency. For purposes of the foregoing, (a)
if only
one of S&P and Moody's shall have in effect a Public Debt
Rating, the
Applicable Margin shall be determined by reference to the
available
rating; (b) if neither S&P nor Moody's shall have in effect
a Public Debt
Rating, the Applicable Margin will be set in accordance with
Level 5 under
the definition of "Applicable Margin"; (c) if the ratings
established by
S&P and Moody's shall fall within different levels in the
table set forth
in the definition of "Applicable Margin", the Applicable Margin
shall be
based upon the higher rating unless such ratings differ by two
or more
such levels, in which case the applicable level will be deemed
to be one
level below the higher of such levels; (d) if any rating
established by
S&P or Moody's shall be changed, such change shall be
effective as of the
date on which such change is first announced publicly by the
rating agency
making such change; and (e) if S&P or Moody's shall change
the basis on
which ratings are established, each reference to the Public Debt
Rating
announced by S&P or Moody's, as the case may be, shall refer
to the then
equivalent rating by S&P or Moody's, as the case may be.
"Ratable Share" of any amount means (a) with respect to any
Lender
as to Participated Letters of Credit at any time, a fraction the
numerator
of which is the amount of such Lender's Participated Commitment
at such
time (or, if the Participated Commitments shall have been
terminated
pursuant to Section 2.04 or 6.01, such Lender's Participated
Commitment as
in effect immediately prior to such termination) and the
denominator of
which is the aggregate amount of all Participated Commitments at
such time
(or, if the Participated Commitments shall have been terminated
pursuant
to Section 2.04 or 6.01, the aggregate amount of all
Participated
Commitments as in effect immediately prior to such termination);
(b) with
respect to any Lenders as to Syndicated Letters of Credit at any
time, a
fraction the numerator of which is the amount of such Lender's
Syndicated
Commitment at such time (or, if the Syndicated Commitments shall
have been
terminated pursuant to Section 2.04 or 6.01, such Lender's
Syndicated
Commitment as in effect immediately prior to such termination)
and the
denominator of which is the aggregate
11
<PAGE>
amount of all Syndicated Commitments at such time (or, if the
Syndicated
Commitments shall have been terminated pursuant to Section 2.04
or 6.01,
the aggregate amount of all Syndicated Commitments as in
effect
immediately prior to such termination); and (c) with respect to
any Lender
as to all Letters of Credit or to amounts owing under this
Agreement in
general at any time, a fraction the numerator of which is the
amount of
such Lender's Syndicated Commitment or Participated Commitment
(as the
case may be) at such time (or, if the Syndicated Commitment or
the
Participated Commitment (as the case may be) shall have been
terminated
pursuant to Section 2.04 or 6.01, such Lender's Commitment as in
effect
immediately prior to such termination) and the denominator of
which is the
aggregate amount of all Commitments at such time (or, if all
the
Commitments shall have been terminated pursuant to Section 2.04
or 6.01,
the amount of all Commitments as in effect immediately prior to
such
termination).
"Register" has the meaning specified in Section 9.07(d).
"Reimbursement Obligations" means, collectively, Syndicated
Reimbursement Obligations and Participated Reimbursement
Obligations.
"Required Lenders" means, at any time, Lenders holding at least
a
majority in interest of the aggregate Credit Exposure at such
time and, if
there is no Credit Exposure at such time, Lenders holding a
majority of
the Commitments at such time.
"Required Reimbursement Date" means the Business Day after the
L/C
Disbursement Date.
"Risk Based Capital Ratio" means, as of any time the same is to
be
determined, the ratio of Adjusted Capital of TIC to the Company
Action
Level of TIC at such time. Upon request of the Agent, the
Account Party
shall provide, or shall cause (or the Guarantor shall cause) TIC
to
provide, the calculation of the Adjusted Capital or the Company
Action
Level to the Agent. Adjusted Capital, for the purpose of this
definition,
shall be computed in the manner from time to time prescribed by
the
Insurance Department of the State of Connecticut as total
adjusted capital
for inclusion in the annual Statutory Statement of TIC to such
Insurance
Department (currently appearing on page 28 of such annual
Statutory
Statement in line 30 and currently consisting of capital and
surplus, the
asset valuation reserve of TIC and 50% of TIC's dividend
liability), but
calculated on a quarterly basis.
"SAP" means, with respect to a Person, the statutory
accounting
principles prescribed or permitted by the relevant Insurance
Department,
or in the event that such Insurance Department fails to
prescribe or
address such practices, the NAIC guidelines.
"S&P" means Standard & Poor's, a division of The
McGraw-Hill
Companies, Inc.
"SEC" means the Securities and Exchange Commission and any
successor
regulatory body.
"Securities Transactions" means (a) securities lending
arrangements,
and (b) repurchase and reverse repurchase arrangements with
respect to
securities and financial instruments.
"Separate Accounts" means assets and liabilities of funds that
are
segregated for the benefit of certain policy holders bearing
the
investment risk of such funds.
12
<PAGE>
"Significant Subsidiary" means, at any time, a Subsidiary of
the
Guarantor which as of such time meets the definition of a
"significant
subsidiary" contained as of the date hereof in Regulation S-X of
the SEC,
but excluding any Subsidiary (an "Investment Subsidiary")
organized or
formed (as the case may be) in connection with the ownership
and
investment management of the general account assets of (i) MLIC
or (ii)
any other Significant Subsidiary of the Guarantor that is an
insurance
company (each of MLIC and such other insurance company, an
"Insurance
Subsidiary"); provided, however, that, so long as the
Consolidated assets
of the Investment Subsidiaries of any Insurance Subsidiary
exceed 25% of
the Consolidated assets of such Insurance Subsidiary, then each
such
Investment Subsidiary shall be deemed to be a Significant
Subsidiary.
"Single Employer Plan" means a single employer plan, as defined
in
Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the
Guarantor or any ERISA Affiliate and no Person other than the
Guarantor
and the ERISA Affiliates or (b) was so maintained and in respect
of which
the Guarantor or any ERISA Affiliate could have liability under
Section
4069 of ERISA in the event such plan has been or were to be
terminated.
"Stated Amount" means, with respect to any Letter of Credit at
any
time, the aggregate amount available to be drawn thereunder at
such time
(regardless of whether any conditions for drawing could then be
met and
after giving effect to any reductions thereof that may occur
pursuant to
the terms of the Letters of Credit from time to time), including
by reason
of the making of any L/C Disbursement thereunder.
"Statutory Statements" means, with respect to any Person,
the
financial statements required to be prepared by such Person in
accordance
with SAP and the rules and regulations of such Person's
Insurance
Regulatory Authority.
"Structured Transaction Liens" means Liens granted by MLIC to
(A) a
99%-owned Subsidiary (the "Relevant Subsidiary") in connection
with a
structured private investment transaction entered into in
September 1999,
as the same may be amended from time to time (the
"Structured
Transaction") where (i) in connection with such transaction,
such Liens
are assigned to a special purpose Subsidiary of MLIC (the "SPV")
in which
MLIC is the holder of all outstanding obligations (other than
ordinary
course administrative expenses and common equity interests) and
(ii) the
assets covered by such Liens consist solely of the rights of
MLIC against
the SPV; and (B) the SPV in connection with the Structured
Transaction
which are subordinated to, and exercisable only after, the Liens
described
in the preceding clause (A) and which cover only the assets
covered by the
Liens described in said clause (A).
"Subordinated Obligations" has the meaning specified in
Section
7.05.
"Subsidiary" of any Person means any corporation, partnership,
joint
venture, limited liability company, trust or estate of which (or
in which)
more than 50% of (a) the issued and outstanding capital stock
having
ordinary voting power to elect a majority of the Board of
Directors of
such corporation (irrespective of whether at the time capital
stock of any
other class or classes of such corporation shall or might have
voting
power upon the occurrence of any contingency), (b) the interest
in the
capital or profits of such limited liability company,
partnership or joint
venture or (c) the beneficial interest in such trust or estate
is at the
time directly or indirectly owned or controlled by such Person,
by such
Person and one or more of its other Subsidiaries or by one or
more of such
Person's other Subsidiaries.
13
<PAGE>
"Swap Contract" means (a) any and all rate swap transactions,
basis
swaps, credit derivative transactions, forward rate
transactions,
commodity swaps, commodity options, forward commodity contracts,
equity or
equity index swaps or options, bond or bond price or bond index
swaps or
options or forward bond or forward bond price or forward bond
index
transactions, interest rate options, forward foreign
exchange
transactions, cap transactions, floor transactions, collar
transactions,
currency swap transactions, cross-currency rate swap
transactions,
currency options, spot contracts, or any other similar
transactions or any
combination of any of the foregoing (including any options to
enter into
any of the foregoing), whether or not any such transaction is
governed by
or subject to any master agreement, and (b) any and all
transactions of
any kind, and the related confirmations, which are subject to
the terms
and conditions of, or governed by, any form of master agreement
published
by the International Swaps and Derivatives Association, Inc.,
any
International Foreign Exchange Master Agreement, or any other
master
agreement (any such master agreement, together with any related
schedules,
or annexes, a "Master Agreement"), including any such
obligations or
liabilities under any Master Agreement.
"Syndicated Commitment" means, with respect to each Issuing Bank
of
Syndicated Letters of Credit, the obligation of such Issuing
Bank to issue
Syndicated Letters of Credit for the account of the Account
Party in (a)
the maximum aggregate amount set forth opposite the Issuing
Bank's name on
the signature pages hereto under the caption "Syndicated
Commitment" or
(b) if such Issuing Bank has entered into one or more Assignment
and
Acceptances, the amount set forth for such Issuing Bank in the
Register
maintained by the Agent pursuant to Section 9.07(d) as such
Issuing Bank's
"Syndicated Commitment", in each case as such amount may be
reduced prior
to such time pursuant to Section 2.04. For the avoidance of
doubt, any
amount deposited in the L/C Cash Deposit Account shall not alter
any
Lender's Syndicated Commitment hereunder.
"Syndicated Letters of Credit" means letters of credit issued
under
Section 2.01(a).
"Syndicated Reimbursement Obligations" has the meaning given to
such
term in Section 2.01(g).
"Termination Date" means (a) if the Closing Date has not
occurred
prior to or on December 31, 2005, December 31, 2005 or (b) the
earlier of
(i) the date which is five years after the Closing Date and (ii)
the date
of termination in whole of the Commitments pursuant to Section
2.04 or
6.01.
"TIC" has the meaning given to such term in the definition
of
"Beneficiary" herein.
"TLAC" has the meaning given to such term in the definition
of
"Beneficiary" herein.
"Unused Commitment" means, with respect to each Lender at any
time,
(a) with respect to Syndicated Letters of Credit, the difference
between
such Lender's Syndicated Commitment and such Lender's Ratable
Share of the
Available Amount of all Syndicated Letters of Credit and (b)
with respect
to Participated Letters of Credit, the difference between such
Lender's
Participated Commitment and such Lender's Ratable Share of the
Available
Amount of all Participated Letters of Credit.
"Voting Stock" means capital stock issued by a corporation,
or
equivalent interests in any other Person, the holders of which
are
ordinarily, in the absence of contingencies, entitled to vote
for the
election of directors (or persons performing similar functions)
of such
Person, even if the right so to vote has been suspended by the
happening
of such a contingency.
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<PAGE>
SECTION 1.02. Computation of Time Periods. In this Agreement in
the
computation of periods of time from a specified date to a later
specified date,
the word "from" means "from and including" and the words "to"
and "until" each
mean "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance
with generally
accepted accounting principles consistent with those applied in
the preparation
of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE L/C DISBURSEMENTS AND LETTERS OF
CREDIT
SECTION 2.01. Syndicated Letters of Credit. (a) General. Subject
to
the terms and conditions set forth herein, at the request of the
Account Party,
each Lender with a Syndicated Commitment agrees at any time and
from time to
time during the Availability Period to issue Syndicated Letters
of Credit for
the account of the Account Party to a Beneficiary, subject to
the terms and
conditions of this Section 2.01. Each Syndicated Letter of
Credit shall be
substantially in the form of Exhibit B-1, and shall be issued
ratably with
Participated Letters of Credit; provided that, without the prior
consent of each
Lender, no Syndicated Letter of Credit may be issued that would
vary the several
and not joint nature of the obligations of the Lenders
thereunder as provided in
the next succeeding sentence. Each Syndicated Letter of Credit
shall be issued
by all of the Lenders thereunder, acting through the Agent, at
the time of
issuance as a single multi-bank letter of credit, but the
obligation of each
Lender thereunder shall be several and not joint, in the amount
of its Ratable
Share of the aggregate undrawn amount of such Syndicated Letter
of Credit at the
time that such Syndicated Letter of Credit is issued.
(b) Notice of Issuance, Amendment, Renewal or Extension. To
request
the issuance of a Syndicated Letter of Credit (or the amendment,
renewal or
extension of an outstanding Syndicated Letter of Credit), the
Account Party
shall hand deliver or telecopy (or transmit by electronic
communication, if
arrangements for doing so have been approved by the Agent) to
the Agent (which
will promptly notify the other Lenders with a Syndicated
Commitment thereof and
provide to such Lenders as soon as practicable a copy of the
Syndicated Letter
of Credit as well as the letter of credit application referred
to below, if
delivered to the Agent by the Account Party) at least five (5)
Business Days in
advance of the requested date of issuance, amendment, renewal or
extension (or
such shorter period as is acceptable to the Agent, including
with respect to any
request for the issuance of a Syndicated Letter of Credit on the
Closing Date,
subject to approval by the Agent) a notice in a form acceptable
to the Agent (a
"Syndicated Letter of Credit Notice") requesting the issuance of
a Syndicated
Letter of Credit, or identifying the Syndicated Letter of Credit
to be amended,
renewed or extended, and specifying the date of issuance,
amendment, renewal or
extension, as the case may be (which shall be a Business Day),
the date on which
such Syndicated Letter of Credit is to expire (which shall
comply with Section
2.01(d)), the amount of such Syndicated Letter of Credit, the
name and address
of the Beneficiary thereof and the terms and conditions of (and
such other
information as shall be necessary to prepare, amend, renew or
extend as the case
may be) such Syndicated Letter of Credit, it being understood
and agreed that
Syndicated Letters of Credit may be extended and renewed in
accordance with
Section 2.01(d). If requested by the Agent, the Account Party
shall submit a
letter of credit application on Wachovia's standard form (with
such changes as
Wachovia shall deem appropriate) in connection with any request
for a Syndicated
Letter of Credit. In the event of any inconsistency between the
terms and
conditions of this Agreement and the terms and conditions of any
form of letter
of credit application or other agreement submitted by the
Account Party to, or
entered into by the Account Party with, the Agent relating to
any Syndicated
Letter of Credit, the terms and conditions of this Agreement
shall control.
(c) Limitations on Amounts. A Syndicated Letter of Credit shall
be
issued, amended, renewed or extended only if, after giving
effect to such
issuance, amendment, renewal or extension, (i) the
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aggregate Credit Exposure of the Lenders shall not exceed the
aggregate amount
of the Commitments and (ii) the Credit Exposure of each Lender
party to such
Syndicated Letter of Credit shall not exceed the Commitment of
such Lender.
(d) Expiry Date. Each Syndicated Letter of Credit shall expire
at or
prior to the earlier of (i) the close of business on the date
one year after the
date of the issuance of such Syndicated Letter of Credit (or, in
the case of any
renewal or extension thereof, one year after such renewal or
extension), or (ii)
the seventh (7th) day prior to the Termination Date; provided,
however, that a
Syndicated Letter of Credit shall provide by its terms, and on
terms acceptable
to the Agent, for renewal for successive periods of one year or
less (but not
beyond the seventh day prior to the Termination Date) unless and
until the Agent
shall have delivered 30 days' prior written notice of nonrenewal
to the
Beneficiary of such Syndicated Letter of Credit (which the Agent
shall do only
if a Default or Event of Default shall have occurred and be
continuing or if
representations and warranties (except for those representations
and warranties
set forth in Section 4.01(f) and the last sentence of Section
4.01(e)) could not
be true and correct in all material respects if requested). The
Agent shall
promptly provide a copy of any such notice to the Account
Party.
(e) Obligation of Lenders. The obligation of any Lender under
any
Syndicated Letter of Credit shall be several and not joint and
shall be in an
amount equal to such Lender's Ratable Share of the aggregate
Available Amount of
such Syndicated Letter of Credit at the time such Syndicated
Letter of Credit is
issued, and each Syndicated Letter of Credit shall expressly so
provide. No
assignment of Commitment under Section 9.07 shall change or
affect the liability
of any Lender under any outstanding Syndicated Letter of
Credit.
(f) Issuance Administration. Each Syndicated Letter of Credit
shall
be executed and delivered by the Agent in the name and on behalf
of, and as
attorney-in-fact for, each Lender party to such Syndicated
Letter of Credit, and
the Agent shall act under each Syndicated Letter of Credit, and
each Syndicated
Letter of Credit shall expressly provide that the Agent shall
act, as the agent
of each Lender to (i) execute and deliver such Syndicated Letter
of Credit, (ii)
receive drafts, other demands for payment and other documents
presented by the
Beneficiary under such Syndicated Letter of Credit, (iii)
determine whether such
drafts, demands and documents are in compliance with the terms
and conditions of
such Syndicated Letter of Credit, (iv) notify such Lender and
the Account Party
that a valid drawing has been made and the date that the related
L/C
Disbursement is to be made and (v) exercise all rights held by
the issuer of a
letter of credit under the documents for which such Syndicated
Letter of Credit
shall provide credit enhancement (or designate any Person as its
representative
for all such purposes under such documents); provided that the
Agent shall have
no obligation or liability for any L/C Disbursement under such
Syndicated Letter
of Credit, and each Syndicated Letter of Credit shall expressly
so provide. Each
Lender hereby irrevocably appoints and designates the Agent as
its
attorney-in-fact, acting through any duly authorized officer, to
execute and
deliver in the name and on behalf of such Lender each Syndicated
Letter of
Credit to be issued by such Lender hereunder and to take such
other actions
contemplated by this Section 2.01(f). Promptly upon the request
of the Agent,
each Lender will furnish to the Agent such powers of attorney or
other evidence
as any Beneficiary of any Syndicated Letter of Credit may
reasonably request in
order to demonstrate that the Agent has the power to act as
attorney-in-fact for
such Lender to execute and deliver such Syndicated Letter of
Credit.
(g) Reimbursement. (i) The Account Party agrees that it
shall
reimburse the Lenders in respect of their L/C Disbursements
under any Syndicated
Letter of Credit by paying to the Agent an amount equal to the
aggregate of any
L/C Disbursements no later than 2:00 p.m., Charlotte, North
Carolina time, on
the Required Reimbursement Date (each such amount until paid, a
"Syndicated
Reimbursement Obligation"). Notwithstanding the foregoing, if
the Agent shall
make, on behalf of any Lender, such Lender's L/C Disbursement
with respect to
any Syndicated Letter of Credit in accordance
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<PAGE>
with Section 2.01(i), then any payments made by the Account
Party with respect
to such Syndicated Reimbursement Obligation shall be made to,
and for the
benefit of, the Agent until such Lender makes payment to the
Agent of all
amounts required under Section 2.01(i).
(ii) If the Account Party fails to reimburse the Lenders in
respect
of their L/C Disbursements under such Syndicated Letter of
Credit on the L/C
Disbursement Date, interest shall accrue from and after the L/C
Disbursement
Date at a rate equal to (A) on or prior to the Required
Reimbursement Date, the
greater of (I) LIBOR for the period from the L/C Disbursement
Date to the
Required Reimbursement Date plus an amount equal to the Letter
of Credit Fee set
forth in Section 2.03(b) or (II) the sum of (a) the Federal
Funds Rate plus (b)
1/2% per annum plus (c) an amount equal to the Letter of Credit
Fee and (B)
after the Required Reimbursement Date, the greater of (x) LIBOR
for the period
from the Required Reimbursement Date to the date such L/C
Disbursement is paid
plus an amount equal to the Letter of Credit Fee set forth in
Section 2.03(b)
plus 2.0% per annum or (y) the sum of (a) the Federal Funds Rate
plus (b) 2.0%
per annum plus (c) an amount equal to the Letter of Credit
Fee.
(h) Disbursement Procedures. The Agent shall, within a
reasonable
time following its receipt thereof (and, in any event, within
any specific time
in the text of the relevant Syndicated Letter of Credit),
examine all documents
purporting to represent a demand for payment under any
Syndicated Letter of
Credit. The Agent shall promptly after such examination and
before such L/C
Disbursement (i) notify each Lender and the Account Party and
the Guarantor by
telephone (confirmed by telecopy or email) of such demand for
payment, and (ii)
notify each Lender whether or not the Agent will make such
Lender's L/C
Disbursement with respect to such Syndicated Letter of Credit
available to the
applicable Beneficiary in accordance with Section 2.01(i). With
respect to any
drawing made under a Syndicated Letter of Credit, unless the
Agent has notified
the Lenders that it will fund the Lenders' respective L/C
Disbursements
available to the Beneficiary of such Syndicated Letter of Credit
in accordance
with Section 2.01(i), each Lender will make an L/C Disbursement
in respect of
such Syndicated Letter of Credit promptly in accordance with its
liability under
such Syndicated Letter of Credit and this Agreement, such L/C
Disbursement to be
made to the account of the Agent most recently designated by it
for such purpose
by notice to the Lenders. The Agent will make such L/C
Disbursement available to
the Beneficiary of such Syndicated Letter of Credit by promptly
crediting the
amounts so received, in the funds so received, to the account
identified by such
Beneficiary in connection with such demand for such L/C
Disbursement. Promptly
following any L/C Disbursement by any Lender in respect of any
Syndicated Letter
of Credit, the Agent will notify the Account Party and the
Guarantor of such L/C
Disbursement; provided that any failure to give or delay in
giving such notice
shall not relieve the Account Party of its obligation to
reimburse the Lenders
with respect to any such L/C Disbursements.
(i) Intra-Day Fronting Option. The Agent may, but shall not
be
obligated to, make, on behalf of any Lender, such Lender's L/C
Disbursement in
respect of any Syndicated Letter of Credit on the applicable L/C
Disbursement
Date. Each Lender hereby absolutely and unconditionally agrees
to pay to the
Agent such Lender's L/C Disbursement made by the Agent on behalf
of such Lender
in respect of any Syndicated Letter of Credit promptly upon the
request of the
Agent at any time from the time such L/C Disbursement is made
until the
Syndicated Reimbursement Obligation with respect thereto is
reimbursed by the
Account Party or at any time after any reimbursement payment is
required to be
refunded to the Account Party for any reason (and without
limiting the
foregoing, if the Agent shall give any Lender notice by 2:00
p.m., Charlotte,
North Carolina time, on any L/C Disbursement Date that it has
not received
reimbursement from the Account Party for the L/C Disbursement
made by the Agent
on behalf of such Lender on such L/C Disbursement Date, such
Lender shall pay to
the Agent the amount of such L/C Disbursement not later than
4:00 p.m.,
Charlotte, North Carolina time). Such payment shall be made
without any offset,
abatement, withholding or reduction whatsoever. If and to the
extent that such
Lender shall not have paid the amount of any such L/C
Disbursement to the Agent
after receiving a request therefor, such Lender, on the one
hand, and the
Account Party, on the other, severally agree to pay
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<PAGE>
to the Agent forthwith on demand such corresponding amount,
together with
interest thereon for each day from the date such L/C
Disbursement is paid by the
Agent until the date such amount is repaid to the Agent, (i) in
the case of
payment by such Lender, at the Federal Funds Rate plus 1/2%, and
(ii) in the
case of payment by the Account Party, at the Federal Funds Rate
plus 1/2%
(which, in the case of this clause (ii), shall be credited
toward amounts owed
by the Account Party pursuant to Section 2.01(g)(ii)above). If
such Lender shall
repay to the Agent the amount of such L/C Disbursement (plus
applicable
interest, if any), such amount shall constitute such Lender's
L/C Disbursement
under the applicable Syndicated Letter of Credit for purposes of
this Agreement.
The failure of any Lender to make any L/C Disbursement required
to be made by it
shall not relieve any other Lender of its obligation, if any,
hereunder or any
Syndicated Letter of Credit to make its L/C Disbursement, but no
Lender shall be
responsible for the failure of any other Lender to make the L/C
Disbursement to
be made by such other Lender. The funding by the Agent of any
L/C Disbursement
on behalf of any Lender under the terms of this Section 2.01(i)
shall not create
the obligation on the Agent to fund (i) any other L/C
Disbursement of such
Lender, or (ii) any L/C Disbursement of any other Lender
(including any such L/C
Disbursement made on the same L/C Disbursement Date under the
same Syndicated
Letter of Credit).
(j) Loss of NAIC Approval. If a Lender which had NAIC approval
on
the date it became a party to this Agreement shall cease to
maintain such
approval or otherwise shall lose such approval (a "Non-NAIC
Lender"), the
Account Party, the Guarantor, such Non-NAIC Lender and the other
Lenders hereby
agree that (i) (A) if such Non-NAIC Lender is not a Downgraded
Lender, such
Non-NAIC Lender shall automatically be deemed to have a
Participated Commitment
for Participated Letters of Credit in an amount equal to its
Unused Commitment,
and (B) if such Non-NAIC Lender is a Downgraded Lender, the
provisions of
Section 2.02(j) shall apply and, in each case, it shall
thereafter cease to have
a Syndicated Commitment to the extent of such Unused Commitment,
and (ii) to the
extent Syndicated Letters of Credit are outstanding, effective
at the time the
Beneficiaries execute and deliver an amendment to (A) any
Syndicated Letter of
Credit such that the Non-NAIC Lender is removed from such
Syndicated Letter of
Credit and (B) any Participated Letter of Credit issued,
extended or renewed at
the same time as such Syndicated Letter of Credit, such that the
Available
Amount under such Participated Letter of Credit is increased by
an amount equal
to the Non-NAIC Lender's L/C Exposure with respect to such
Syndicated Letter of
Credit (and the Account Party and the Guarantor agree to use all
commercially
reasonable efforts to cause such amendments to be executed and
delivered by the
Beneficiaries and any necessary regulatory approvals to be
obtained at the
earliest possible date) and any outstanding Reimbursement
Obligations with
respect to such Syndicated Letter of Credit have been paid in
full, the
aggregate Syndicated Commitments and Syndicated Letters of
Credit, respectively,
shall be automatically reduced by an amount equal to the
Non-NAIC Lender's L/C
Exposure with respect to such Syndicated Letter of Credit
immediately prior to
such amendment, and such Non-NAIC Lender shall be automatically
deemed to have a
Participated Commitment in an amount equal to such reduction in
its Syndicated
Commitment; provided that, if, upon the reduction of the
Syndicated Commitments,
the Available Amount of all Letters of Credit would exceed the
aggregate amount
of the Commitments, then the Account Party will immediately
eliminate such
excess by causing the Available Amount under one or more Letters
of Credit to be
reduced.
(k) Letter of Credit Reports. Wachovia shall furnish (i) the
Agent,
each Lender with a Syndicated Commitment, the Account Party and
the Guarantor,
by or about the fifth Business Day of each month, with a written
report
summarizing issuance and expiration dates of each Syndicated
Letter of Credit
issued by the Lenders with a Syndicated Commitment during the
preceding month
and drawings during such month under each outstanding Syndicated
Letter of
Credit and (ii) the Agent, each Lender with a Syndicated
Commitment and the
Account Party, by the fifteenth Business Day of each calendar
quarter, with a
written report setting forth the average daily aggregate
Available Amount and
Stated Amount during the preceding calendar quarter of all
Syndicated Letters of
Credit issued by it.
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SECTION 2.02. Participated Letters of Credit. (a) General.
Subject
to the terms and conditions set forth herein, in addition to the
issuance of
Syndicated Letters of Credit provided for in Section 2.01, the
Account Party may
request Wachovia to issue, at any time and from time to time
during the
Availability Period, Participated Letters of Credit for the
account of the
Account Party to a Beneficiary, subject to the terms and
conditions of this
Section 2.02. Each Participated Letter of Credit shall be
substantially in the
form of Exhibit B-2, and shall be issued ratably with Syndicated
Letters of
Credit. Such Participated Letter of Credit shall be issued by
Wachovia Bank, as
Issuing Bank, and all references to Issuing Bank in this Section
2.02 shall be
references solely to Wachovia Bank, as Issuing Bank for
Participated Letters of
Credit.
(b) Notice of Issuance, Amendment, Renewal or Extension. To
request
the issuance of a Participated Letter of Credit (or the
amendment, renewal or
extension of an outstanding Participated Letter of Credit), the
Account Party
shall hand deliver or telecopy (or transmit by electronic
communication, if
arrangements for doing so have been approved by the Issuing
Bank) to the Issuing
Bank and the Agent (which shall promptly notify the other
Lenders with a
Participated Commitment thereof and provide to such Lenders as
soon as
practicable a copy of the Participated Letter of Credit as well
as the letter of
credit application referred to below if delivered to the Issuing
Bank) at least
five (5) Business Days in advance of the requested date of
issuance, amendment,
renewal or extension (or such shorter period as is acceptable to
the Agent and
the Issuing Bank, including any request for the issuance of a
Participated
Letter of Credit on the Closing Date, subject to approval by the
Agent and the
Issuing Bank) a notice in a form acceptable to the Agent (a
"Participated Letter
of Credit Notice") requesting the issuance of a Participated
Letter of Credit,
or identifying the Participated Letter of Credit to be amended,
renewed or
extended, and specifying the date of issuance, amendment,
renewal or extension,
as the case may be (which shall be a Business Day), the date on
which such
Participated Letter of Credit is to expire (which shall comply
with Section
2.02(d)), the amount of such Participated Letter of Credit, the
name and address
of the Beneficiary thereof and such other information as shall
be necessary to
prepare, amend, renew or extend, as the case may be) such
Participated Letter of
Credit, it being understood and agreed that Participated Letters
of Credit may
be extended and renewed in accordance with Section 2.02(d). If
requested by the
Issuing Bank, the Account Party shall submit a letter of credit
application on
the Issuing Bank's standard form (with such changes as the
Issuing Bank shall
deem appropriate) in connection with any request for a
Participated Letter of
Credit. In the event of any inconsistency between the terms and
conditions of
this Agreement and the terms and conditions of any form of
letter of credit
application or other agreement submitted by such Account Party
to, or entered
into by any Account Party with, the Issuing Bank relating to any
Participated
Letter of Credit, the terms and conditions of this Agreement
shall control.
(c) Limitations on Amounts. A Participated Letter of Credit
shall be
issued, amended, renewed or extended only if, after giving
effect to such
issuance, amendment, renewal or extension, (i) the aggregate
Credit Exposure of
the Lenders shall not exceed the aggregate amount of the
Commitments and (ii)
the Credit Exposure of each Lender participating in such
Participated Letter of
Credit (pursuant to Section 2.02(e)) shall not exceed the
Commitment of such
Lender.
(d) Expiry Date. Each Participated Letter of Credit shall expire
at
or prior to the earlier of (i) the close of business on the date
one year after
the date of the issuance of such Participated Letter of Credit
(or, in the case
of any renewal or extension thereof, one year after such renewal
or extension),
or (ii) the seventh (7th) day prior to the Termination Date;
provided, however,
that a Participated Letter of Credit shall provide by its terms,
and on terms
acceptable to the Issuing Bank, for renewal for successive
periods of one year
or less (but not beyond the seventh day prior to the Termination
Date) unless
and until the Issuing Bank shall have delivered 30 days' prior
written notice of
nonrenewal to the Beneficiary of such Participated Letter of
Credit (which the
Issuing Bank shall do only if a Default or Event of Default
shall have occurred
and be continuing or if representations and warranties (except
for those
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<PAGE>
representations and warranties set forth in Section 4.01(f) and
the last
sentence of Section 4.01(e)) could not be true and correct in
all material
respects if requested). The Agent shall promptly provide a copy
of any such
notice to the Account Party.
(e) Participations. By the issuance of a Participated Letter
of
Credit (or an amendment to a Participated Letter of Credit
increasing the amount
thereof) by Wachovia and without any further action on the part
of Wachovia, or
the Lenders, Wachovia hereby grants to each Lender with a
Participated
Commitment, and each Lender with a Participated Commitment
hereby acquires from
Wachovia, participation in such Participated Letter of Credit
equal to such
Lender's Ratable Share of the Available Amount of such
Participated Letter of
Credit. Each Lender with a Participated Commitment acknowledges
and agrees that
its obligation to acquire participations pursuant to this
paragraph in respect
of Participated Letters of Credit is absolute and unconditional
and shall not be
affected by any circumstance whatsoever, including any
amendment, renewal or
extension of any Participated Letter of Credit or the occurrence
and continuance
of a Default or Event of Default or reduction or termination of
the Commitments.
In consideration and in furtherance of the foregoing, each
Lender with a
Participated Commitment hereby absolutely and unconditionally
agrees to pay to
the Agent, for account of Wachovia, such Lender's Ratable Share
of each L/C
Disbursement made by Wachovia in respect of any Participated
Letter of Credit
promptly upon the request of Wachovia at any time from the time
such L/C
Disbursement is made until such L/C Disbursement is reimbursed
by the Account
Party or at any time after any reimbursement payment is required
to be disgorged
or refunded to the Account Party for any reason. Such payment
shall be made
without any offset, abatement, withholding or reduction
whatsoever. Promptly
following receipt by the Agent of any payment from the Account
Party pursuant to
the next following paragraph, the Agent shall distribute such
payment to
Wachovia or, to the extent that the Lenders with a Participated
Commitment have
made payments pursuant to this paragraph to reimburse Wachovia,
then to such
Lenders and Wachovia as their interests may appear. Any payment
made by a Lender
with a Participated Commitment pursuant to this paragraph to
reimburse Wachovia
for any L/C Disbursement shall not relieve the Account Party of
its obligation
to reimburse such L/C Disbursement. Upon any change in the
Commitments of any of
the Lenders with a Participated Commitment pursuant to Section
9.07 with respect
to all outstanding Participated Letters of Credit, there shall
be an automatic
adjustment to the participations pursuant to this Section to
reflect the new
Ratable Share of the assigning Lender and the Assignee,
respectively, of all of
the Participated Commitments.
(f) Reimbursement. (i) The Account Party agrees that it
shall
reimburse the Issuing Bank in respect of its L/C Disbursements
under any
Participated Letter of Credit by paying to the Agent an amount
equal to such L/C
Disbursement not later than 2:00 p.m., Charlotte, North Carolina
time, on the
Required Reimbursement Date (each such amount until paid, a
"Participated
Reimbursement Obligation").
(ii) If the Account Party fails to reimburse the Lenders in
respect
of their L/C Disbursements under such Participated Letter of
Credit on the L/C
Disbursement Date, interest shall accrue from and after the L/C
Disbursement
Date at a rate equal to (A) on or prior to the Required
Reimbursement Date, the
greater of (I) LIBOR for the period from the L/C Disbursement
Date to the
Required Reimbursement Date plus an amount equal to the Letter
of Credit Fee set
forth in Section 2.03(b) or (II) the sum of (a) the Federal
Funds Rate plus (b)
1/2% per annum plus (c) an amount equal to the Letter of Credit
Fee, and (B)
after the Required Reimbursement Date, the greater of (x) LIBOR
from the
Requirement Reimbursement Date to the date such L/C Disbursement
is paid plus an
amount equal to the Letter of Credit Fee set forth in Section
2.03(b) plus 2.0%
per annum or (y) the sum of (a) the Federal Funds Rate plus (b)
2.0% per annum
plus (c) an amount equal to the Letter of Credit Fee.
(g) Disbursement Procedures. The Issuing Bank shall, within
a
reasonable time following its receipt thereof (and, in any
event, within any
time specified in the text of the relevant
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<PAGE>
Participated Letters of Credit), examine all documents
purporting to represent a
demand for payment under a Participated Letter of Credit. The
Issuing Bank shall
promptly after such examination notify the Agent and the Account
Party by
telephone (confirmed by telecopy or email) of such demand for
payment and
whether the Issuing Bank has made or will make a L/C
Disbursement thereunder;
provided that any failure to give or delay in giving such notice
shall not
relieve the Account Party of its obligation to reimburse the
Issuing Bank and
the Lenders with respect to any such L/C Disbursement. If the
Account Party
shall fail to reimburse the Issuing Bank for such L/C
Disbursement when due, the
Agent shall notify each Lender of the applicable L/C
Disbursement, the payment
then due from the Account Party in respect thereof and such
Lender's Ratable
Share thereof, and each Lender shall promptly pay to the Agent,
for account of
the Issuing Bank, such Lender's Ratable Share of such L/C
Disbursement.
(h) Letter of Credit Reports. Wachovia shall furnish (i) to
the
Agent, with a copy to the Account Party and the Guarantor, by or
about the fifth
Business Day of each month a written report summarizing issuance
and expiration
dates of Participated Letters of Credit issued by it during the
preceding month
and drawings during such month under each outstanding
Participated Letter of
Credit and (ii) to the Agent and each Lender with a Participated
Commitment,
with a copy to the Account Party, by the fifteenth Business Day
of each calendar
quarter a written report setting forth the average daily
aggregate Available
Amount and Stated Amount during the preceding calendar quarter
of all
Participated Letters of Credit issued by it.
(i) Failure to Make L/C Disbursements. The failure of any Lender
to
make the L/C Disbursement to be made by it on the date specified
in Section
2.02(e) shall not relieve any other Lender of its obligation
hereunder to make
its L/C Disbursement on such date, but no Lender shall be
responsible for the
failure of any other Lender to make the L/C Disbursement to be
made by such
other Lender on such date.
(j) Downgraded Lender. (i) If a Downgrade Event shall occur
with
respect to (a) any Downgraded Lender or (b) any other Lender
with a Participated
Commitment and, as a result thereof, such other Lender becomes a
Downgraded
Lender, then the Agent or Wachovia as Issuing Bank with respect
to Participated
Letters of Credit may, by notice to such Downgraded Lender and
the Account Party
within 45 days after the Agent (or Wachovia, whichever have
given the notice)
becomes aware of such Downgrade Event (any such notice a
"Downgrade Notice"),
request that the Account Party and the Guarantor use reasonable
commercial
efforts to replace such Lender as a party to this Agreement
pursuant to Section
2.02(k) as soon as possible. If such Lender is not so replaced
within 45 days
after receipt by the Account Party of such Downgrade Notice,
then (x) if no
Default exists and such Downgraded Lender has not exercised its
right to remain
a Lender hereunder pursuant to clause (y) below, the following
shall occur
concurrently: (A) the aggregate Participated Commitments shall
be reduced by the
amount of the Participated Commitment of such Downgraded Lender,
(B) the Account
Party shall pay all amounts owed to such Downgraded Lender
hereunder or in
connection herewith, (C) if, upon the reduction of the
Participated Commitments
under clause (A) above and the payment under clause (B) above,
the Available
Amount of all Participated Letters of Credit would exceed the
aggregate amount
of the Participated Commitments, then the Account Party will use
its best
efforts to eliminate such excess by causing the Available Amount
under one or
more Letters of Credit to be reduced to the extent necessary to
eliminate such
excess; provided, however, that, in the event that the Account
Party is unable
to eliminate such excess, the Account Party shall deposit in the
L/C Cash
Deposit Account cash collateral in an amount equal to such
excess, and (D) upon
completion of the events in (A), (B) and (C) above, such
Downgraded Lender shall
cease to be a party to this Agreement or (y) if a Default exists
or, not later
than 30 days after receipt of such Downgrade Notice, such
Downgraded Lender
notifies the Account Party, Wachovia and the Agent that such
Downgraded Lender
elects to provide (in a manner reasonably satisfactory to the
Agent) cash
collateral to the Agent for (or if such Downgraded Lender is
unable, without
regulatory approval, to provide cash collateral, a letter of
credit reasonably
satisfactory to the Agent covering) its
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contingent obligations to reimburse Wachovia for its
Participated Commitment,
such Downgraded Lender shall be obligated to (and each Lender
agrees that in
such circumstances it will) deliver to the Agent (I)
immediately, cash
collateral (or, as aforesaid, a letter of credit) in an amount
equal to its
Participated Commitments and (II) from time to time thereafter
(so long as it is
a Downgraded Lender), cash collateral (or, as aforesaid, a
letter of credit)
sufficient to cover any increase in its Participated Commitments
as a result of
any proposed issuance of or increase in a Participated Letter of
Credit. Any
funds provided by a Downgraded Lender for such purpose shall be
maintained in
segregated deposit accounts in the name of Wachovia at the
Agent's principal
offices in the United States (each a "Downgrade Account"). The
funds so
deposited in any Downgrade Account (or any drawing under such a
letter of
credit) shall be used only in accordance with the following
provisions of this
Section 2.02(j).
(ii) If any Downgraded Lender shall be required to fund its
participation in a payment under a Participated Letter of Credit
pursuant to
Section 2.02(e), then the Agent shall apply the funds deposited
in the
applicable Downgrade Account by such Downgraded Lender (or any
drawing under
such a letter of credit) to fund such participation. The deposit
of funds in a
Downgrade Account by any Downgraded Lender (or any drawing under
such a letter
of credit) shall not constitute a Participated Reimbursement
Obligation (and the
Downgraded Lender shall not be entitled to interest on such
funds except as
provided in Section 2.02(j)(iii) below) unless and until (and
then only to the
extent that) such funds (or any drawing under such a letter of
credit) are used
by the Agent to fund the participation of such Downgraded Lender
pursuant to the
first sentence of this Section 2.02(j)(ii).
(iii) Funds in a Downgrade Account shall be invested in such
investments as may be agreed between the Agent and the
applicable Downgraded
Lender, and the income from such investments shall be
distributed to such
Downgraded Lender from time to time as agreed between the Agent
and such
Downgraded Lender. The Agent will (x) from time to time, upon
request by a
Downgraded Lender, release to such Downgraded Lender any amount
on deposit in
the applicable Downgrade Account in excess of the Participated
Commitments of
such Downgraded Lender (or, if applicable, not draw under any
such letter of
credit in excess of the Participated Commitments of such
Downgraded Lender) and
(y) upon the earliest to occur of (A) the effective date of any
replacement of
such Downgraded Lender as a party hereto pursuant to an
Assignment and
Acceptance, (B) the termination of such Downgraded Lender's
Participated
Commitment pursuant to Section 2.02(j)(i) or (C) the first
Business Day after
receipt by the Agent of evidence (reasonably satisfactory to the
Agent) that
such Lender is no longer a Downgraded Lender, release to such
Lender all amounts
on deposit in the applicable Downgrade Account (or, if
applicable, return such
letter of credit to such Lender for cancellation).
(iv) At any time any Downgraded Lender is required to maintain
cash
collateral with the Agent pursuant to this Section 2.02(j),
Wachovia shall have
no obligation to issue or increase any Participated Letter of
Credit unless such
Downgraded Lender has provided sufficient funds as cash
collateral (or a letter
of credit satisfactory to Wachovia, as aforesaid) to the Agent
to cover all
Participated Commitments of such Downgraded Lender (including in
respect of the
Participated Letter of Credit to be issued or increased).
(k) Replacement of Downgraded Lender. At any time any Lender is
a
Downgraded Lender, the Account Party or Wachovia, as Issuing
Bank with respect
to Participated Letters of Credit, may replace such Downgraded
Lender as a party
to this Agreement to the extent of the Downgraded Lender's
Participated
Commitment with one or more Eligible Assignees, and upon notice
from the Account
Party such Downgraded Lender shall assign pursuant to an
Assignment and
Acceptance, and without recourse or warranty, its Participated
Commitment, its
participation in, and rights and obligations with respect to,
Participated
Letters of Credit, and all of its other rights and obligations
hereunder to such
Eligible Assignee or Eligible Assignees for a purchase price
equal to the sum of
the principal amount of the Participated Commitments so
assigned, all accrued
and unpaid interest thereon, such Downgraded
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Lender's Ratable Share of all accrued and unpaid fees payable
pursuant to
Section 2.03 and all other obligations owed to such Downgraded
Lender hereunder,
in each case to the extent such fees and other obligations
relate to
Participated Letters of Credit.
(l) Receipt of NAIC Approval. If a Lender which did not have
NAIC
approval on the date it became a party to this Agreement shall
receive or obtain
such approval thereafter (a "Subsequent-NAIC Lender"), the
Account Party, the
Guarantor, such Subsequent-NAIC Lender and the other Lenders
hereby agree that
(i) (A) if such Subsequent-NAIC Lender is not a Downgraded
Lender, such
Subsequent-NAIC Lender shall automatically be deemed to have a
Syndicated
Commitment for Syndicated Letters of Credit in an amount equal
to its Unused
Commitment, and (B) if such Subsequent-NAIC Lender is a
Downgraded Lender, the
provisions of Section 2.02(j) shall apply and, in each case, it
shall thereafter
cease to have a Participated Commitment to the extent of such
Unused Commitment,
and (ii) to the extent Participated Letters of Credit are
outstanding, effective
on the date that the Beneficiaries agree to an amendment to any
Participated
Letter of Credit such that an amount equal to the Ratable Share
thereof of the
Subsequent-NAIC Lender is removed from such Participated Letter
of Credit (and
the Account Party and the Guarantor agree to use all
commercially reasonable
efforts to cause such amendment to be executed by the
Beneficiaries and any
necessary regulatory approvals to be obtained at the earliest
possible date),
the aggregate Participated Commitments and Participated Letters
of Credit,
respectively, shall be automatically reduced by an amount equal
to the
Subsequent-NAIC Lender's Participated Commitments and such
Subsequent-NAIC
Lender shall be automatically deemed to have a Syndicated
Commitment in an
amount equal to each reduction in its Participated Commitment;
provided that,
if, upon the reduction of the Participated Commitments, the
Available Amount of
all Letters of Credit would exceed the aggregate amount of the
Commitments, then
the Account Party will immediately eliminate such excess by
causing the
Available Amount under one or more Letters of Credit to be
reduced.
SECTION 2.03. Fees. (a) Facility Fee. The Guarantor, on behalf
of
the Account Party, agrees to pay to the Agent for the account of
each Lender a
facility fee on the aggregate amount of such Lender's Commitment
(whether or not
utilized) from (and including) the Closing Date in the case of
each Initial
Lender and from (and including) the effective date specified in
the Assignment
and Acceptance pursuant to which it became a Lender in the case
of each other
Lender until the later of the Termination Date and the payment
in full of all
obligations hereunder at a rate per annum equal to the
Applicable Margin for
Facility Fees in effect from time to time, payable (for the
period commencing on
the Closing Date) in arrears quarterly on the last day of each
March, June,
September and December, commencing on the first end-of-quarter
date after the
Closing Date, and on the Termination Date. For purposes of this
Section 2.03(a),
from and after the Termination Date, each Lender's Commitment
shall be deemed to
be in an amount equal to its Ratable Share of the sum of (i) the
Available
Amount, if any, of the Letters of Credit plus (ii) the aggregate
principal
amount of the L/C Disbursements for which reimbursement has not
been received.
(b) Letter of Credit Fees. (i) The Guarantor, on behalf of
the
Account Party, shall pay to the Agent for the account of each
Issuing Bank a
commission on such Issuing Bank's Ratable Share of the average
daily aggregate
Stated Amount of all Letters of Credit outstanding from time to
time at a rate
per annum equal to the Applicable Margin in effect from time to
time for Letter
of Credit Fees payable in arrears quarterly on the last day of
each March, June,
September and December, commencing with the first end-of-quarter
date after the
Closing Date, and on the Termination Date; provided that such
Applicable Margin
shall be 2% above the Applicable Margin in effect upon the
occurrence and during
the continuation of an Event of Default for any days for which
the Account Party
is required to pay default interest pursuant to Section
2.07(b).
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<PAGE>
(ii) The Guarantor, on behalf of the Account Party, shall pay
to
each Issuing Bank, for its own account in the case of Issuing
Banks of
Participated Letters of Credit, a fronting fee and, in the case
of any Issuing
Bank, such other commissions, issuance fees and other fees and
charges in
connection with the issuance or administration of each Letter of
Credit as the
Account Party and such Issuing Bank shall agree.
(c) Agent's Fees. The Guarantor, on behalf of the Account
Party,
shall pay to the Agent for its own account such fees as may from
time to time be
agreed between the Guarantor and the Agent.
(d) Ticking Fee. If the Closing Date shall not have occurred by
June
30, 2005, the Guarantor shall pay to the Agent for the account
of each Lender a
ticking fee equal to 0.07% per annum on the aggregate amount of
the Commitments
for the period from and after June 30, 2005, payable ratably to
each Lender in
accordance with such Lender's Commitment in arrears quarterly
and on the earlier
of (a) the Closing Date and (b) the termination of each Lender's
Commitments.
SECTION 2.04. Termination or Reduction of the Commitments.
The
Account Party shall have the right, upon at least three (3)
Business Days'
notice to the Agent, to terminate or cancel in whole or
permanently reduce
ratably in part the Unused Commitments of the Lenders; provided
that each
partial reduction shall be in the aggregate amount of
$10,000,000 or an integral
multiple of $1,000,000 in excess thereof. Once terminated or
reduced, the Unused
Commitments may not be reinstated.
SECTION 2.05. Repayment of L/C Disbursements and Letter of
Credit
Drawings. (a) The Account Party shall repay to the Agent for the
ratable account
of the Lenders on the first Business Day after each drawing
under a Letter of
Credit the aggregate principal amount of the L/C Disbursements
relating to such
Letter of Credit.
(b) The obligations of the Account Party to reimburse with
respect
to a L/C Disbursement under any Letter of Credit and of any
Lenders with a
Participated Commitment to reimburse Wachovia with respect to
any L/C
Disbursement under any Participated Letter of Credit shall be
unconditional and
irrevocable, and shall be paid strictly in accordance with the
terms of this
Agreement and any Letter of Credit Agreement under all
circumstances, including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement,
any
Letter of Credit Agreement, any Letter of Credit or any other
agreement or
instrument relating thereto (all of the foregoing being,
collectively, the
"L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or
in
any other term of, all or any of the obligations of the Account
Party in
respect of any L/C Related Document or any other amendment or
waiver of or
any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other
right
that the Account Party may have at any time against any
beneficiary or any
transferee of a Letter of Credit (or any Persons for which any
such
beneficiary or any such transferee may be acting), any Issuing
Bank, any
Agent, a
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