<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
i
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
3
<PAGE>
"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
<PAGE>
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.
14
<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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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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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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<PAGE>
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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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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(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
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