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
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CITIGROUP GLOBAL MARKETS INC.
and
WACHOVIA CAPITAL MARKETS, LLC
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms..........................................2
SECTION 1.02. Computation of Time Periods...................................15
SECTION 1.03. Accounting Terms..............................................15
ARTICLE II
AMOUNTS AND TERMS OF THE L/C DISBURSEMENTS AND LETTERS OF CREDIT
SECTION 2.01. Syndicated Letters of Credit..................................15
SECTION 2.02. Participated Letters of Credit................................19
SECTION 2.03. Fees..........................................................23
SECTION 2.04. Termination or Reduction of the Commitments...................24
SECTION 2.05. Repayment of L/C Disbursements and Letter of Credit Drawings..24
SECTION 2.06. Existing Letters of Credit....................................25
SECTION 2.07. Interest......................................................25
SECTION 2.08. Interest Rate Determination...................................25
SECTION 2.09. Collateralization/Prepayments of Reimbursement Obligations....25
SECTION 2.10. Increased Costs...............................................26
SECTION 2.11. Payments and Computations.....................................27
SECTION 2.12. Taxes.........................................................28
SECTION 2.13. Sharing of Payments, Etc......................................29
SECTION 2.14. Evidence of Debt..............................................30
SECTION 2.15. Use of Proceeds...............................................30
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ISSUANCES
SECTION 3.01. Conditions....................................................30
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SECTION 3.02. Conditions Precedent to Each Issuance.........................32
SECTION 3.03. Reallocation and Assignment of Obligations with Respect to
Existing Letters of Credit....................................32
SECTION 3.04. Effect of this Agreement......................................33
SECTION 3.05. Release of Existing Guarantor.................................33
SECTION 3.06. Determinations Under Section 3.01.............................33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Account Party...........33
SECTION 4.02. Representations and Warranties of the Guarantor...............35
ARTICLE V
COVENANTS OF THE ACCOUNT PARTY And the Guarantor
SECTION 5.01. Affirmative Covenants.........................................37
SECTION 5.02. Negative Covenants............................................39
SECTION 5.03. Financial Covenants...........................................42
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.............................................42
SECTION 6.02. Actions in Respect of Letters of Credit upon Default..........43
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty......................................................44
SECTION 7.02. Guaranty Absolute.............................................44
SECTION 7.03. Waivers and Acknowledgments...................................46
SECTION 7.04. Subrogation...................................................46
SECTION 7.05. Subordination.................................................47
SECTION 7.06. Continuing Guaranty; Assignments..............................47
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ARTICLE VIII
THE AGENT, etc.
SECTION 8.01. Authorization and Action......................................48
SECTION 8.02. Reliance, Etc.................................................48
SECTION 8.03. Wachovia and Affiliates.......................................48
SECTION 8.04. Lender Credit Decision........................................49
SECTION 8.05. Indemnification...............................................49
SECTION 8.06. Successor Agent...............................................50
SECTION 8.07. No Responsibility.............................................50
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc...............................................50
SECTION 9.02. Notices, Etc..................................................51
SECTION 9.03. No Waiver; Remedies; Entire Agreement.........................52
SECTION 9.04. Costs and Expenses............................................52
SECTION 9.05. Right of Set-off..............................................53
SECTION 9.06. Binding Effect................................................53
SECTION 9.07. Assignments and Participations................................53
SECTION 9.08. Confidentiality...............................................56
SECTION 9.09. Governing Law. Agreement, and the Letters of Credit..........56
SECTION 9.10. Execution in Counterparts.....................................56
SECTION 9.11. Jurisdiction, Etc.............................................57
SECTION 9.12. No Liability of the Issuing Banks.............................57
SECTION 9.13. WAIVER OF JURY TRIAL..........................................58
SECTION 9.14. Patriot Act Notice............................................58
iii
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
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:
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: 000000000,
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:
PUBLIC DEBT RATING FACILITY FEE LETTER OF CREDIT FULLY UTILIZED COST
S&P/XXXXX'X FEE
Xxxxx 0 0.05% 0.20% 0.25%
A+ or A1 or above
Xxxxx 0 0.07% 0.28% 0.35%
A or A2
Xxxxx 0 0.08% 0.32% 0.40%
A- or A3
Level 4 0.09% 0.41% 0.50%
BBB+ or Baa1
Xxxxx 0 0.11% 0.64% 0.75%
Lower than Level 4
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provided that, until the first financial reporting date pursuant to
Section 5.01(g), the Applicable Margin shall be determined by reference to
Level 2.
"Arrangers" has the meaning given to it in the preamble hereto.
"Asset Securitization" means a public or private transfer of
installment receivables, credit card receivables, lease receivables,
mortgage loan receivables, policyholder loan receivables or any other type
of secured or unsecured financial assets, which transfer is recorded as a
sale in accordance with GAAP as of the date of such transfer.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit A hereto or such other form
reasonably acceptable to the Agent and the Account Party and the Guarantor
(such approvals not to be unreasonably withheld or delayed).
"Attributable Debt" means, on any date, in respect of any capital
lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with
GAAP.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing),
such amount sometimes being referred to as the face amount.
"Availability Period" means the period from and including the
Closing Date to and including one hundred eighty (180) days prior to the
scheduled Termination Date.
"Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(e) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest established by Wachovia in Charlotte,
North Carolina, from time to time, as its prime rate for dollars
loaned in the United States of America; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
The Base Rate is an index rate and is not necessarily intended to be
the lowest or best rate of interest charged to customers in connection
with extensions of credit or to other banks.
"Beneficiaries" means The Travelers Life and Annuity Company
("TLAC"), a Connecticut corporation, and The Travelers Insurance Company
("TIC"), a Connecticut corporation, as separate beneficiaries of separate
letters of credit or additional or successor beneficiaries which are
wholly owned by the Guarantor or its successor and which are designated in
writing as "Beneficiaries" hereunder by notice from the Account Party to
the Agent and approved by the Agent.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in either New York City or
Charlotte, North Carolina.
3
"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
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 Xxxxx'x.
"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 Xxxxx'x) 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
Xxxxx'x; 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 Xxxxx'x), and provided further that, if the
ratings established by S&P and Xxxxx'x 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
"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
"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
"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
"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 Xxxxx'x Investors Service, Inc.
9
"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
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
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 XxXxxx-Xxxx
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
"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
"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
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
15
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
16
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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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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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
20
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
21
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
22
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).
23
(ii) The Guarantor, on behalf of the Account Party, shall pay to
each Issuing Bank, for its own account in the case of Issuing Banks of
Participated Letters of Credit, a fronting fee and, in the case of any Issuing
Bank, such other commissions, issuance fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit as the
Account Party and such Issuing Bank shall agree.
(c) Agent's Fees. The Guarantor, on behalf of the Account Party,
shall pay to the Agent for its own account such fees as may from time to time be
agreed between the Guarantor and the Agent.
(d) Ticking Fee. If the Closing Date shall not have occurred by June
30, 2005, the Guarantor shall pay to the Agent for the account of each Lender a
ticking fee equal to 0.07% per annum on the aggregate amount of the Commitments
for the period from and after June 30, 2005, payable ratably to each Lender in
accordance with such Lender's Commitment in arrears quarterly and on the earlier
of (a) the Closing Date and (b) the termination of each Lender's Commitments.
SECTION 2.04. Termination or Reduction of the Commitments. The
Account Party shall have the right, upon at least three (3) Business Days'
notice to the Agent, to terminate or cancel in whole or permanently reduce
ratably in part the Unused Commitments of the Lenders; provided that each
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof. Once terminated or reduced, the Unused
Commitments may not be reinstated.
SECTION 2.05. Repayment of L/C Disbursements and Letter of Credit
Drawings. (a) The Account Party shall repay to the Agent for the ratable account
of the Lenders on the first Business Day after each drawing under a Letter of
Credit the aggregate principal amount of the L/C Disbursements relating to such
Letter of Credit.
(b) The obligations of the Account Party to reimburse with respect
to a L/C Disbursement under any Letter of Credit and of any Lenders with a
Participated Commitment to reimburse Wachovia with respect to any L/C
Disbursement under any Participated Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and any Letter of Credit Agreement under all circumstances, including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Account Party in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Account Party may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, any
Agent, any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
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(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Account Party in
respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Account Party, the Guarantor or a guarantor, other than
as may be expressly set forth in this Agreement.
SECTION 2.06. Existing Letters of Credit. Subject to Section 3.03,
the Account Party and the Lenders agree that, as of the Closing Date, each
Existing Letter of Credit issued for the account of the Account Party under the
Existing L/C Agreement and set forth on Schedule 2.06 on the Closing Date will
be deemed continued for the account of the Account Party under this Agreement as
of the date of the issuance thereof.
SECTION 2.07. Interest. (a) Scheduled Interest. The Account Party
shall pay interest on the unpaid amount of each Reimbursement Obligation owing
to each Lender from the date of each L/C Disbursement until such amount shall be
paid in full as specified in Section 2.01(g)(ii) or Section 2.02(f)(ii), as
applicable.
(b) Default Interest with Respect to L/C Disbursements. Upon the
occurrence and during the continuance of an Event of Default under Section
6.01(a), the Agent may, and upon the request of the Required Lenders shall,
require the Account Party to pay interest ("Default Interest") on (i) the unpaid
reimbursement amount with respect to each L/C Disbursement owing to each Lender,
payable in arrears from time to time as demanded and on the date such
reimbursement amount is paid in full, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such L/C
Disbursement pursuant to clause (a) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be L/C Disbursements
pursuant to clause (a) above; provided, however, that following acceleration
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. The Agent shall give
prompt notice to the Account Party and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a) or (b).
SECTION 2.09. Collateralization/Prepayments of Reimbursement
Obligations. (a) The Account Party may collateralize or prepay the Reimbursement
Obligations with respect to L/C Disbursements in whole or ratably in part,
together with accrued interest thereon to the date of such collateralization or
prepayment by depositing funds into the L/C Cash Deposit Account as cash
collateral; provided, however, that each collateralization or partial prepayment
shall be in an aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) On each date that (i) the sum of (A) the aggregate amount of the
Lenders' L/C Exposures plus the aggregate amount of the unreimbursed L/C
Disbursements less (B) amounts on deposit in the L/C Cash Deposit Account
exceeds (ii) the aggregate Commitments, the Account Party
25
and/or the Guarantor shall pay to the Agent for the benefit of the Lenders in
same day funds for deposit in the L/C Cash Deposit Account, an amount equal to
such excess. Such funds shall be applied or disbursed in accordance with Section
6.02, in all cases as if Section 6.02 applied thereto.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
after the Effective Date, there shall be any increase in the cost to any Lender
of agreeing to issue or of issuing or maintaining or participating in Letters of
Credit (excluding for purposes of this Section 2.10 any such increased costs
resulting from (i) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender is organized or has its Lending Office or any
political subdivision thereof), then the Account Party shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Account Party and the Agent by such Lender,
shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) enacted, made or
becoming effective after the Effective Date affects or would affect the amount
of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend or
to issue or participate in Letters of Credit hereunder and other commitments of
this type, then, upon demand by such Lender (with a copy of such demand to the
Agent), the Account Party shall pay to the Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation for any reduced rate of return
associated with such increase in capital in light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend or to issue or
participate in Letters of Credit hereunder. A certificate as to such amounts
submitted to the Account Party and the Agent by such Lender shall be conclusive
and binding for all purposes, absent manifest error.
(c) If it becomes unlawful in any jurisdiction for a Lender to
perform any of its obligations contemplated in this Agreement or to make any L/C
Disbursements in accordance with such Lender's Commitment, (i) such Lender shall
promptly notify the Agent upon becoming aware of that event; (ii) upon the Agent
notifying the Account Party and the Guarantor, the Commitment of such Lender
will be immediately cancelled; and (iii) with respect to Syndicated Letters of
Credit, such Lender shall be deemed to be a Non-NAIC Lender and the provisions
of Section 2.01(j) shall apply or, with respect to Participated Letters of
Credit, such Lender shall be deemed to be a Downgraded Lender and the provisions
of Section 2.02(j) shall apply.
(d) Failure or delay of any Lender to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender's right to demand
such compensation; provided that the Account Party shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more that 30 days prior to the date that such Lender
notifies the Account Party of the circumstances giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor.
(e) In the event that any Lender demands payment of material costs
or material additional amounts pursuant to this Section 2.10 or Section 2.12,
then (subject to such Lender's right to
26
rescind such demand or assertion within 10 days after the notice from the
Account Party referred to below) the Account Party may, so long as no Event of
Default has occurred and is continuing and so long as such costs or additional
amounts are materially more than those charged by other Lenders and so long as
the Beneficiaries agree to the assignment below (and the Account Party and the
Guarantor agree to use all commercially reasonable efforts to cause the
Beneficiaries to agree to such assignment at the earliest possible date), upon
20 days' prior written notice to such Lender and the Agent, elect to cause such
Lender to assign its Commitment in full to one or more Persons selected by the
Account Party so long as (a) each such Person satisfies the criteria of an
Eligible Assignee and is reasonably satisfactory to the Agent, (b) such Lender
receives payment in full in cash of any outstanding L/C Disbursements made by it
and all accrued and unpaid interest thereon and all other amounts due and
payable to such Lender as of the date of such assignment (including, without
limitation, amounts owing pursuant to Sections 2.10, 2.12 and 9.04) and (c) each
such Lender assignee agrees to accept such assignment and to assume all
obligations of such Lender hereunder in accordance with Section 9.07.
SECTION 2.11. Payments and Computations. (a) The Guarantor and, for
the period from and after the Closing Date, the Account Party shall make each
payment hereunder, irrespective of any right of counterclaim or set-off, not
later than 2:00 p.m. (Charlotte, North Carolina time) on the day when due in
U.S. dollars to the Agent at the Agent's Account in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal, interest, fees or commissions ratably (other than amounts
payable pursuant to Sections 2.01, 2.02, 2.10, 2.12 or 9.04) to the Lenders for
the account of their respective Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Guarantor and, for the period from and after the Closing
Date, the Account Party hereby authorize each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder, to charge from time
to time against any or all of the Guarantor's and the Account Party's accounts,
as applicable, with such Lender any amount so due.
(c) All computations of interest, fees and Letter of Credit
commissions shall be made by the Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest, fee or commission, as the case may be.
(e) Unless the Agent shall have received notice from (i) the
Guarantor or (ii) from the period from and after the Closing Date, the Guarantor
or the Account Party prior to the date on which any payment owed by the
Guarantor or the Account Party, as the case may be, is due to the Lenders
hereunder that the Guarantor or the Account Party, as the case may be, will not
make such payment in full, the Agent may assume that the Guarantor or the
Account Party, as the case may be, has made such payment in full to the Agent on
such date and the Agent may, in reliance upon such assumption, cause to be
27
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Guarantor or the Account Party, as the
case may be, shall not have so made such payment in full to the Agent, each
Lender shall repay to the Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Account Party
or the Guarantor, as the case may be, to or for the account of any Lender or the
Agent hereunder or any other documents to be delivered hereunder shall be made,
in accordance with Section 2.11 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder being
hereinafter referred to as "Taxes"). If the Account Party or the Guarantor, as
the case may be, shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or any other documents to be delivered hereunder to
any Lender or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made (the "Original Sum"), (ii) the Account
Party or the Guarantor, as the case may be, shall pay to the Lender or the
Agent, as the case may be, an amount equal to the Original Sum and (iii) the
Guarantor shall pay an amount equal to the full amount of such deductions to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Guarantor shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or any other documents to be
delivered hereunder or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or any other
documents to be delivered hereunder (hereinafter referred to as "Other Taxes").
(c) The Guarantor shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.12) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor accompanied by evidence of the imposition
or payment of the applicable Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes, the
Account Party or the Guarantor, as the case may be, shall furnish to the Agent,
at its address referred to in Section 9.02, the original or a certified copy of
a receipt evidencing such payment to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Agent. In the case of any payment hereunder or any other
documents to be delivered hereunder by or on behalf of the Account Party or the
Guarantor, as the case may be, through an account or branch outside the United
States or by or on behalf of the Account Party or the Guarantor, as the case may
be, by a payor that is not a United States person, if the Account Party
determines that no Taxes are payable in respect thereof, the
28
Account Party or the Guarantor, as the case may be, shall furnish, or shall
cause such payor to furnish, to the Agent, at such address, an opinion of
counsel acceptable to the Agent stating that such payment is exempt from Taxes.
For purposes of this subsection (d) and subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as reasonably requested in writing by
the Account Party or the Guarantor, as the case may be, (but only so long as
such Lender remains lawfully able to do so), shall provide each of the Agent and
the Account Party or the Guarantor, as the case may be, with two original
Internal Revenue Service Forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date and the Lender assignee is similarly
entitled under United States federal law and regulations relating to withholding
tax, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to
in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service Form W-8BEN or W-8ECI, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof to
the Account Party or the Guarantor, as the case may be, and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Account Party or the Guarantor, as the case may be, with the
appropriate form, certificate or other document described in Section 2.12(e)
(other than if such failure is due to a change in law, or in the interpretation
or application thereof, occurring subsequent to the date on which a form,
certificate or other document originally was required to be provided, or if such
form, certificate or other document otherwise is not required under subsection
(e) above), such Lender shall not be entitled to indemnification under Section
2.12(a) or (c) with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that should a Lender become subject to Taxes
because of its failure to deliver a form, certificate or other document required
hereunder, the Account Party or the Guarantor, as the case may be, shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the obligations owing to it hereunder
(other than in connection with a payment in respect of an L/C Disbursement made
by an Issuing Bank pursuant to Section 2.01(g) 2.02(f), 2.10, 2.12 or 9.04(c))
in excess of its Ratable Share of payments on account of the L/C Disbursements
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the obligations owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall
29
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (a) the amount of such Lender's required repayment to (b) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Account Party agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Account Party in the amount of such
participation.
SECTION 2.14. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Account Party to such Lender resulting from each L/C
Disbursement applicable to such Lender from time to time, including the amount
of Reimbursement Obligations and interest payable and paid to such Lender from
time to time hereunder in respect of L/C Disbursements.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each applicable L/C Disbursement made under a Letter of Credit, (ii) the terms
of each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any Reimbursement Obligation or interest due and payable or to become
due and payable from the Account Party to each Lender hereunder and (iv) the
amount of any sum received by the Agent from the Account Party hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Account Party to, in the case of the Register, each Lender and, in the case of
such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Agent or such Lender to make
an entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Account Party under this Agreement.
SECTION 2.15. Use of Proceeds. The Letters of Credit shall be
available (and the Account Party agrees that it shall use such Letters of
Credit) solely to support the reinsurance provided from time to time by the
Account Party to the Beneficiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ISSUANCES
SECTION 3.01. Conditions.
(a) Conditions Precedent to Effectiveness of Sections 2.03(d) and
2.11 and Articles VIII and IX. Sections 2.03(d) and 2.11 and Articles VIII and
IX of this Agreement shall become effective on and as of the first date (the
"Effective Date") on which the following conditions precedent have been
satisfied:
(i) The Account Party shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
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(ii) The Guarantor, on behalf of the Account Party, shall have paid
all accrued fees and expenses of the Agent and the Arrangers (including
the reasonable accrued fees and expenses of counsel to the Agent and the
Arrangers for which a statement has been rendered).
(iii) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender
certificates signed by a duly authorized officer of the Account Party and
the Guarantor, as the case may be, dated the Effective Date, stating that:
(A) The representations and warranties contained in Sections
4.01 and 4.02 (other than the representations and warranties
contained in Sections 4.01(c) and 4.02(b)(i), (b)(ii)(x) and
(b)(iii)) are correct on and as of the Effective Date; provided,
however, that the definitions of "Affiliate", "Subsidiary" and
"Significant Subsidiary" shall not, when applied with respect to the
Guarantor, include the Account Party or the Beneficiaries, and
(B) No event that would constitute an Event of Default under
Section 6.01(e), if such Section 6.01(e) were effective, has
occurred and is continuing.
(iv) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and in sufficient copies for each Lender:
(A) Certified copies of the applicable portions of the Bylaws
of the Guarantor and the Account Party and resolutions of the Board
of Directors of the Account Party and the Guarantor authorizing or
approving this Agreement, and of all documents evidencing other
necessary corporate action, if any, with respect to this Agreement.
(B) A certificate of the Secretary or an Assistant Secretary
of each of the Account Party and the Guarantor certifying the names
and true signatures of the officers of the Account Party or the
Guarantor, as the case may be, authorized to sign this Agreement and
the other documents to be delivered hereunder.
(C) Favorable opinions of counsel for the Account Party and
the Guarantor, as the case may be, in form and substance
satisfactory to the Agent.
(D) Delivery of fully executed copies of this Agreement and
all other L/C Related Documents.
(b) Conditions Precedent to Effectiveness of Balance of Agreement.
The balance of the provisions of this Agreement, including the full
amendment and restatement of the Existing L/C Agreement, the actual
continuation of the Existing Letters of Credit as Letters of Credit under
this Agreement, the liability of the Guarantor, the obligations of the
Lenders to issue new Letters of Credit under this Agreement and the
release of the Existing Guarantor, are subject to the prior or concurrent
satisfaction of the following conditions precedent:
(i) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall be in effect, and no law or
regulation shall be applicable that in the reasonable judgment of the
Lenders restrains, prevents or imposes materially adverse conditions upon
the transactions contemplated hereby.
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(ii) The Closing Date shall have occurred.
(iii) On the Closing Date, the following statements shall be true
and the Agent shall have received for the account of each Lender
certificates signed by a duly authorized officer of the Account Party and
the Guarantor, as the case may be, dated the Closing Date, stating that:
(A) No Event of Default has occurred and is continuing, or no
event has occurred and is continuing that with the giving of notice
or lapse of time or both would constitute an Event of Default.
(B) The representations and warranties contained in
Sections 4.01(c) and 4.02(b)(i), (b)(ii)(x) and (b)(iii) are true
and correct on and as of the Closing Date; provided, however, that
the definitions of "Affiliate", "Subsidiary" and "Significant
Subsidiary" shall not, when applied with respect to the Guarantor,
include the Account Party or the Beneficiaries.
(iv) The Agent shall have received on or before the Closing Date
favorable opinions of counsel for the Account Party and the Guarantor, as
the case may be, in form and substance satisfactory to the Agent, stating
that (A) the execution and delivery of the Agreement do not, and
performance by the Account Party and the Guarantor of their obligations
under the Agreement will not, violate applicable provisions of law and (B)
the Account Party and the Guarantor are not, except as may be set forth in
such opinions, required to obtain any approvals from or make any filings
with governmental bodies in connection with the execution, delivery and
performance of the obligations of the Account Party and the Guarantor
under the Agreement.
(v) The Guarantor, on behalf of the Account Party, shall have paid
all accrued fees and expenses of the Agent and the Arrangers (including
any accrued and unpaid ticking fees described in Section 2.03(d) and the
reasonable accrued fees and expenses of counsel to the Agent and the
Arrangers for which a statement has been rendered).
SECTION 3.02. Conditions Precedent to Each Issuance. The obligation
of each Issuing Bank to issue any Letter of Credit shall be subject to the
conditions precedent that the Effective Date shall have occurred, the Closing
Date shall have occurred and on the date of such issuance the following
statements shall be true (and each of the giving of the applicable Notice of
Issuance and the acceptance by the Account Party or a Beneficiary of such Letter
of Credit, each renewal, extension or amendment of a Letter of Credit shall
constitute a representation and warranty by the Account Party that on the date
of such issuance, renewal extension or amendment such statements are true as
though made on such date):
(a) the representations and warranties contained in Article IV
(except the last sentence of Section 4.01(e), Section 4.01(f), Section
4.02(d), Section 4.02(f) and Section 4.02(g)) are correct on and as of
such date, before and after giving effect to such issuance and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(b) no event has occurred and is continuing, or would result from
such issuance, that constitutes a Default or an Event of Default.
SECTION 3.03. Reallocation and Assignment of Obligations with
Respect to Existing Letters of Credit. The credit extensions and commitments
made by the Existing Lenders and outstanding pursuant to the Existing L/C
Agreement shall be assigned without recourse and re-allocated among the Lenders
so that, and the L/C Disbursements and Commitments shall be made by the Lenders
pursuant to this Agreement so that, from and after the Closing Date, the
respective Commitments of the Lenders shall
32
be in accordance with Schedule II hereto; provided that any Existing Lender that
shall not become a Lender hereunder shall execute a Departing Lender Consent
substantially in the form of Exhibit C hereto. Existing Letters of Credit issued
by the Existing Lenders and any existing L/C Disbursements shall, effective as
of the Closing Date, be evidenced and governed by this Agreement and the other
L/C Related Documents. Furthermore, as of the Closing Date, all actions that are
necessary, as a result of the actions taken pursuant to the preceding two
sentences, to replace any Existing Letters of Credit because of changes in the
amounts available thereunder or changes in the Lenders whose several obligations
are represented by any given Syndicated Letter of Credit, including, without
limitation, obtaining any necessary regulatory approvals or consents of the
Beneficiaries, shall have been taken.
SECTION 3.04. Effect of this Agreement. This Agreement amends and
restates the Existing L/C Agreement in its entirety and is entitled to the
benefit of all existing L/C Related Documents. Any reference in any other L/C
Related Document to the "Credit Agreement," "thereunder," "therein," "thereof"
or words of like import referring to the Existing L/C Agreement shall, from and
after the Closing Date, mean and refer to this Agreement. Any reference in any
other L/C Related Document to the "obligations" or any similar term including or
referencing obligations under the Existing L/C Agreement shall, from and after
the Closing Date, include and reference the obligations under in this Agreement.
All obligations under the Existing L/C Agreement and the other L/C Related
Documents shall continue to be outstanding except as expressly modified by this
Agreement and shall be governed in all respects by this Agreement and each other
L/C Related Documents, it being agreed and understood by the parties hereto that
this Agreement does not constitute a novation, satisfaction, payment or
reborrowing of any obligation under the Existing L/C Agreement or any other L/C
Related Document except as expressly modified by this Agreement, nor, except as
expressly provided herein, does it operate as a waiver of any right, power or
remedy of any Lender under any L/C Related Document. In the event of a conflict
between the terms and provisions of this Agreement and the terms and provisions
of any other L/C Related Document, the terms and provisions of this Agreement
shall govern.
SECTION 3.05. Release of Existing Guarantor. It is understood and
agreed that any and all obligations of the Existing Guarantor with respect to
the Existing L/C Agreement are, effective as of the Closing Date, released in
full and the Existing Guarantor shall thereupon cease to be a party thereto.
SECTION 3.06. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Account
Party, by notice to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Account
Party and the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Account Party.
The Account Party represents and warrants as follows:
(a) The Account Party is a corporation duly organized, validly
existing and in good standing under the laws of the State of South Carolina.
(b) The execution, delivery and performance by the Account Party of
this Agreement and the consummation of the transactions contemplated hereby to
be consummated by the Account Party are
33
within the Account Party's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Account Party's
charter or by-laws or (ii) law or any material contractual restriction contained
in any material Debt instrument or, to the Account Party's knowledge, any other
material contractual restriction, binding on or affecting the Account Party.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body that has not
already been obtained is required for the due execution, delivery and
performance by the Account Party of this Agreement.
(d) This Agreement has been duly executed and delivered by the
Account Party. This Agreement is the legal, valid and binding obligation of the
Account Party enforceable against the Account Party in accordance with its terms
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally and general principles of equity.
(e) The Consolidated balance sheets of the Beneficiaries as at
December 31, 2004, and the related Consolidated statements of income and cash
flows for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, together with the Statutory Statements of such
Persons as of such date, duly certified by the chief financial officer of such
Persons, copies of all of which have been furnished to each Lender, fairly
present, subject, in the case of said interim statements to year-end audit
adjustments, the Consolidated financial condition of such Persons as at such
dates and the Consolidated results of the operations of such Persons for the
periods ended on such respective dates, all in accordance with GAAP consistently
applied or SAP, as the case may be. As of the Effective Date, there has been no
Material Adverse Change since December 31, 2004.
(f) There is no pending or, to the knowledge of the Account Party,
threatened action, suit, investigation, litigation or proceeding affecting the
Account Party or any Subsidiary of the Account Party before any court,
governmental agency or arbitrator that (i) purports to affect the legality,
validity or enforceability of this Agreement or the consummation of the
transactions contemplated hereby or (ii) as of the Effective Date, would be
reasonably expected to result in a Material Adverse Change.
(g) The Account Party is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no Letter of Credit or the proceeds of any L/C Disbursement will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock. Not more than 25% of the
value (as determined by any reasonable method) of the assets of the Account
Party is represented by margin stock (within the meaning of Regulation U issued
by the Board of Governors of the Federal Reserve System).
(h) The Account Party is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(i) None of the financial statements, certificates or other
information furnished by or on behalf of the Account Party to the Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished) at the
time furnished contained any material misstatement of fact or omitted to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Guarantor and the Account Party
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
34
(j) None of the Account Party or any Beneficiary is (i) named on the
list of Specially Designated Nationals or Blocked Persons maintained by the U.S.
Department of the Treasury's Office of Foreign Assets Control available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx, or (ii)(A) an agency of
the government of a country, (B) an organization controlled by a country, or (C)
a Person resident in a country that is subject to a sanctions program identified
on the list maintained by the U.S. Department of the Treasury's Office of
Foreign Assets Control and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as otherwise
published from time to time, as such program may be applicable to such agency,
organization or person, and the proceeds from any Letters of Credit will not be
used to fund any operations in, finance any investments or activities in, or
make any payments to, any such country, agency, organization or person.
SECTION 4.02. Representations and Warranties of the Guarantor. The
Guarantor represents and warrants as follows:
(a) The Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Change, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
(b) The consummation of the transactions contemplated hereby to be
consummated by the Guarantor (i) does not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate (x) any applicable law, regulation or order of any Governmental
Authority, except for violations that, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Change, or (y) any
charter, by laws or other organizational documents of the Guarantor, (iii) will
not violate or result in a default under any material indenture, agreement or
other instrument binding upon any Guarantor or its assets, or give rise to a
right thereunder to require any payment to be made by any Guarantor and (iv) is
within the Guarantor's corporate powers and has been duly authorized by all
necessary corporate action. This Agreement has been duly executed and delivered
by the Guarantor and constitutes a legal, valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(c) The Guarantor has heretofore furnished to the Lenders its
audited Consolidated balance sheet and statements of earnings, equity and cash
flows as of and for the fiscal year ended December 31, 2004, reported on by
independent public accountants. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Guarantor and its Consolidated Subsidiaries, as of the date thereof
and for such fiscal year, in accordance with GAAP.
(d) The Guarantor and each of its Significant Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property
material to its business, except for defects in title that, individually or in
the aggregate, would not reasonably be expected to result in a Material Adverse
Change.
(e) The Guarantor and each of its Significant Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Guarantor and each of its Significant Subsidiaries does not infringe upon the
rights
35
of any other Person, except for any such infringements that, individually or in
the aggregate, would not reasonably be expected to result in a Material Adverse
Change.
(f) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Guarantor, threatened against or affecting the Guarantor or any of its
Significant Subsidiaries (i) as to which there would reasonably be expected to
be an adverse determination and that, if adversely determined, would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Change (other than the Disclosed Matters) or (ii) that involve this Agreement or
the transactions contemplated herein.
(g) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Change, neither the Guarantor nor any
of its Significant Subsidiaries (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(h) The Guarantor and its Significant Subsidiaries are each in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to them or their respective property and all indentures, agreements
and other instruments binding upon them or their respective property, except
where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Change. No Default has
occurred and is continuing.
(i) The Guarantor is not an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940. The Guarantor
is not a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
(j) The Guarantor and its Subsidiaries have each timely filed or
caused to be filed all tax returns and reports required to have been filed and
have paid or caused to be paid all taxes, assessments and governmental charges
or levies imposed upon them or upon their respective property required to have
been paid by it, except (i) all taxes, assessments and governmental charges or
levies imposed upon them or upon their respective property that are being
contested in good faith by appropriate proceedings and for which Guarantor or
any Subsidiary, as applicable, has set aside on its books adequate reserves or
(ii) to the extent that the failure to do so would not reasonably be expected to
result in a Material Adverse Change.
(k) Each Plan and, to the knowledge of the Guarantor, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to
occur, would reasonably be expected to result in a Material Adverse Change.
(l) None of the reports, financial statements, certificates or other
information concerning the Guarantor furnished by or on behalf of the Guarantor
to the Agent or any Lender in connection with the negotiation of this Agreement
or delivered hereunder (as modified or supplemented by other information so
furnished), including the Information Memorandum insofar as information
regarding the Guarantor is concerned, contains any material misstatement of fact
or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that with respect to projected financial information, the Guarantor
represents
36
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
(m) None of the Guarantor or any other Subsidiary of the Guarantor
is (i) named on the list of Specially Designated Nationals or Blocked Persons
maintained by the U.S. Department of the Treasury's Office of Foreign Assets
Control available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx, or
(ii)(A) an agency of the government of a country, (B) an organization controlled
by a country, or (C) a Person resident in a country that is subject to a
sanctions program identified on the list maintained by the U.S. Department of
the Treasury's Office of Foreign Assets Control and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as otherwise
published from time to time, as such program may be applicable to such agency,
organization or person, and the proceeds from any Letters of Credit will not be
used to fund any operations in, finance any investments or activities in, or
make any payments to, any such country, agency, organization or person.
(n) As of the Closing Date, the Beneficiaries and the Account Party
are direct or indirect wholly-owned Subsidiaries of the Guarantor.
ARTICLE V
COVENANTS OF THE ACCOUNT PARTY AND THE GUARANTOR
SECTION 5.01. Affirmative Covenants. So long as any L/C Disbursement
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Account Party and the Guarantor will:
(a) Compliance with Laws. Comply, and cause each of their
Significant Subsidiaries to comply, with all laws, rules, regulations and orders
of any Governmental Authority applicable to the Account Party, the Guarantor or
their Significant Subsidiaries or their respective property, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Change.
(b) Payment of Taxes, Etc. Pay, and cause each of their Significant
Subsidiaries to pay, their obligations, including all taxes, assessments and
governmental charges or levies imposed upon it or upon its property, that, if
not paid, would reasonably be expected to result in a Material Adverse Change
before the same shall become delinquent or in default, except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) the Account Party, the Guarantor or such Significant
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (iii) the failure to make payment pending such contest
would not reasonably be expected to result in a Material Adverse Change.
(c) Maintenance of Insurance. (i) Keep and maintain, and cause each
of their Significant Subsidiaries to keep and maintain, subject to Section
5.02(b), all property material to the conduct of their business in good working
order and condition, ordinary wear and tear excepted, and (ii) maintain, and
cause each of their Significant Subsidiaries to maintain, with financially sound
and reputable insurance companies, insurance in such amounts and against such
risks as are customarily maintained by companies of a similar size and credit
rating engaged in the same or similar businesses operating in the same or
similar locations.
(d) Preservation and Maintenance of Corporate Existence, Etc.
Preserve, renew and keep, and cause each of their Significant Subsidiaries to
preserve, renew and keep, in full force and effect their legal existence and the
rights, licenses, permits, privileges and franchises relating to the conduct of
its business, other than those which, in each case, would not reasonably be
expected to result in a Material
37
Adverse Change; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation, dissolution or other transaction permitted under
Section 5.02(b).
(e) Keeping of Books. Keep, and cause each of their Significant
Subsidiaries to keep, proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to their
business and activities. The Account Party and the Guarantor will, and will
cause each of their Significant Subsidiaries to, permit any representative
designated by the Agent (and, if a Default shall have occurred and be
continuing, any representatives reasonably designated by any Lender), upon
reasonable prior notice, to visit and inspect their properties, to examine and
make extracts from their books and records, and to discuss its affairs, finances
and condition (insofar as they relate to this Agreement) with its officers and
independent accountants, all at such reasonable times and as often as reasonably
requested.
(f) Notices of Defaults. Furnish to the Agent and each Lender prompt
written notice of the occurrence of any Default. Each such notice shall be
accompanied by a statement of a Financial Officer or other executive officer of
the Guarantor setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
(g) Reporting Requirements. Furnish to the Agent (which shall
promptly furnish the same, whether by electronic posting or otherwise, to the
Lenders):
(i) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of: (1) to the
extent prepared by a Beneficiary, the Consolidated balance sheet of each
such Beneficiary as of the end of such quarter and Consolidated statements
of income and cash flows of each such Beneficiary for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit adjustments) by
the chief financial officer or a senior financial officer of such
Beneficiary as having been prepared in accordance with GAAP and (2) the
Account Party, a copy of the balance sheet of the Account Party, as of the
end of such quarter and the related statements of income and surplus of
the Account Party for such fiscal period, in the form filed with the
relevant Insurance Regulatory Authority and prepared in accordance with
GAAP with such modifications as shall have been approved by the South
Carolina Department of Insurance, duly certified by the chief financial
officer or a senior financial officer of the Account Party as having been
prepared in accordance with GAAP with such modifications as shall have
been approved by the South Carolina Department of Insurance and a
certificate of a senior financial officer of the Account Party as to
compliance with the terms of this Agreement;
(ii) as soon as available in any event within 45 days after the end
of each of the first three quarters of each fiscal year (and 90 days after
the end of each fiscal year), to the extent prepared by a Beneficiary, a
copy of the statutory balance sheet as of the end of such fiscal quarter
or fiscal year and the related Statutory Statements of income and surplus
for such fiscal period of such Beneficiary, in the form filed with the
relevant Insurance Regulatory Authority and prepared in accordance with
SAP, reported on by the chief financial officer or a senior financial
officer of such Beneficiary;
(iii) as soon as available and in any event within 90 days after the
end of each fiscal year: (1) to the extent prepared by a Beneficiary, a
copy of the Consolidated balance sheet of such Beneficiary as of the end
of such fiscal year and Consolidated statements of income and cash flows
of such Beneficiary for such fiscal year, together with the related
consolidated statements of income and changes in shareholder's equity for
the fiscal year then ended, in each case accompanied by an unqualified
audit report of one of the "big four" independent public
38
accountants of nationally ranked standing; and (2) the Account Party, a
copy of the balance sheet of the Account Party as of the end of such
fiscal year and statements of income and cash flows of the Account Party
for such fiscal year, in each case accompanied by an unqualified (except
for modifications as shall have been approved by the South Carolina
Department of Insurance) audit report of one of the "big four" independent
public accountants of nationally ranked standing and a certificate of the
chief financial officer or a senior financial officer of the Account Party
certifying as to such financial statements and as to compliance with the
terms of this Agreement, all in accordance with GAAP with such
modifications as shall have been approved by the South Carolina Department
of Insurance;
(iv) (1) as soon as available and in any event within 75 days (or,
in the case of fiscal years ending on or after December 15, 2005, 60 days
or such other period as may be prescribed under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities
and Exchange Commission thereunder) after the end of each fiscal year of
the Guarantor, copies of the Guarantor's annual report on Form 10-K as
filed with the SEC for such fiscal year; (2) as soon as available, but not
later than 40 days (or, in the case of fiscal quarters ending on or after
December 15, 2005, 35 days or such other period as may be prescribed under
the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder) after
the end of each of the first three fiscal quarters of each fiscal year of
the Guarantor, copies of the Guarantor's quarterly report on Form 10-Q as
filed with the SEC for such fiscal quarter, it being understood that, in
each case, the Agent shall be entitled to rely on any certification
pursuant to Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, by
the chief financial officer of the Guarantor that accompanies such annual
and quarterly reports; and (3) concurrently with any delivery of financial
statements under this clause (except as to clause (y) herein), a
certificate of a Financial Officer of the Guarantor (x) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with
respect thereto, (y) setting forth reasonably detailed calculations
demonstrating compliance with Section 5.03(a) and Section 5.03(b) and (z)
stating whether any change in GAAP or SAP, as the case may be, or in the
application thereof has occurred since the date of the most recently
delivered financial statements and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(v) as soon as possible and in any event within five days after the
occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer or senior financial officer of
the Account Party setting forth details of such Default and the action
that the Account Party has taken and proposes to take with respect
thereto;
(vi) promptly after the commencement thereof, notice of all actions
and proceedings before any court, governmental agency or arbitrator
affecting the Guarantor or any of its Significant Subsidiaries of the type
described in Section 4.01(f)(i); and
(vii) such other information in respect of the Guarantor or any of
its Significant Subsidiaries as any Lender through the Agent may from time
to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any L/C Disbursement
shall remain unpaid or any Lender shall have any Commitment hereunder, neither
the Account Party nor the Guarantor will:
(a) Liens, Etc. Create or suffer to exist, or permit any of the
Guarantor's Significant Subsidiaries to create or suffer to exist, any Lien on
or with respect to any of its properties, whether now
39
owned or hereafter acquired, or assign for collateral purposes, or permit any of
its Significant Subsidiaries to assign for collateral purposes, any right to
receive income, other than:
(i) Permitted Liens;
(ii) any Lien existing on any property or asset prior to the
acquisition thereof by the Account Party, the Guarantor, any of the
Guarantor's Significant Subsidiaries or any of their respective
Subsidiaries; provided that (i) such Lien is not created in contemplation
of or in connection with such acquisition, (ii) such Lien shall not apply
to any other property or assets of the Account Party, the Guarantor, such
Significant Subsidiary or such other Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such
acquisition;
(iii) Liens on assets acquired, constructed or improved by the
Account Party, the Guarantor, such Significant Subsidiary or any of their
respective Subsidiaries; provided that (1) such Liens and the Debt secured
thereby are incurred prior to or within 360 days after such acquisition or
the completion of such construction or improvement, (2) the Debt secured
thereby does not exceed the cost of acquiring, constructing or improving
such assets, and (3) such Liens shall not apply to any other property or
assets of the Account Party, the Guarantor, such Significant Subsidiary or
such Subsidiary;
(iv) Liens on any property or assets of any Person existing at the
time such Person is merged or consolidated with or into the Account Party,
the Guarantor, such Significant Subsidiary or any of their respective
Subsidiaries and not created in contemplation of such event;
(v) Liens on any real property securing Debt in respect of which (1)
the recourse of the holder of such Debt (whether direct or indirect and
whether contingent or otherwise) under the instrument creating the Lien or
providing for the Debt secured by the Lien is limited to such real
property directly securing such Debt and (2) such holder may not under the
instrument creating the Lien or providing for the Debt secured by the Lien
collect by levy of execution or otherwise against assets or property of
the Account Party, the Guarantor or such Significant Subsidiary (other
than such real property directly securing such Debt) if the Account Party,
the Guarantor or such Significant Subsidiary fails to pay such Debt when
due and such holder obtains a judgment with respect thereto, except for
recourse obligations that are customary in "non-recourse" real estate
transactions;
(vi) Liens arising out of Securities Transactions entered into in
the ordinary course of business and on ordinary business terms;
(vii) Structured Transaction Liens;
(viii) Liens arising out of Asset Securitizations;
(ix) Liens arising out of any real estate sale/leaseback
transactions;
(x) Liens arising in connection with Swap Contracts;
(xi) Liens on securities owned by the Guarantor, any of its
Significant Subsidiaries or any Subsidiary thereof that are pledged to the
Federal Home Loan Bank Board, (the "FHLBB") to secure loans made by the
FHLBB to the Guarantor in the ordinary course of business and on ordinary
business terms;
40
(xii) Liens not otherwise permitted by the foregoing clauses of this
Section 5.02 arising in the ordinary course of business of the Guarantor
or any of its Significant Subsidiaries that do not secure any Debt;
provided that the obligations secured by such Liens shall not exceed in
the aggregate $3,000,000,000 at any one time outstanding;
(xiii) Liens on assets held in Separate Accounts;
(xiv) Liens not otherwise permitted by the foregoing clauses of this
Section 5.02; provided that the aggregate principal amount of the Debt
secured by such Liens shall not exceed $4,000,000,000 at any one time
outstanding; and
(xv) any extension, renewal or replacement of the foregoing;
provided that the Liens permitted hereunder shall not be spread to cover
any additional Debt or assets (other than a substitution of like assets)
unless such additional Debt or assets would have been permitted in
connection with the original creation, incurrence or assumption of such
Lien.
(b) Mergers, Consolidations and Sales of Assets. Merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets (excluding (i) assets sold or disposed of in the ordinary course of
business and (ii) sales of assets between or among the Guarantor and its direct
and indirect wholly-owned Subsidiaries), or liquidate or dissolve; provided,
however, that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing (A) any Subsidiary of
the Guarantor may merge into the Guarantor in a transaction in which the
Guarantor is the surviving corporation and (B) the Guarantor may merge or
consolidate with any other Person if the Guarantor is the surviving corporation.
(c) Transactions with Affiliates. Sell, lease or otherwise transfer,
or permit its Significant Subsidiaries to sell, lease or otherwise transfer, any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions (other than service
arrangements) with, any of its Affiliates, except (i) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Guarantor or such Significant Subsidiary than could be obtained on an arm's
length basis from unrelated third parties, and (ii) transactions between or
among the Guarantor and its direct or indirect Subsidiaries.
(d) Change in Nature of Business. Engage, or permit the Account
Party, the Beneficiaries or any of the Guarantor's Significant Subsidiaries that
are primarily engaged in the insurance business and other businesses
complementary thereto to engage, to any material extent in any business other
than (i) businesses of the type conducted by the Account Party, the
Beneficiaries, the Guarantor or any of the Guarantor's Significant Subsidiaries
on the Closing Date and businesses reasonably related thereto or (ii) businesses
financial in nature.
(e) Use of Proceeds. Permit the Letters of Credit to be available
(and the Account Party agrees that it shall not permit the use such Letters of
Credit) for any purposes other than to support the reinsurance provided by the
Account Party from time to time to the Beneficiaries.
(f) Subsidiaries. The Guarantor shall not permit the Account Party
to cease to be a Subsidiary of the Guarantor.
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SECTION 5.03. Financial Covenants. So long as any L/C Disbursement
shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) Risk Based Capital. The Guarantor shall not permit TIC to have a
Risk Based Capital Ratio of less than 2.50 to 1 as of the last day of any
calendar quarter.
(b) Consolidated Net Worth. The Guarantor will not permit its
Consolidated Net Worth, calculated as of the last day of each fiscal quarter, to
be less than $15,000,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Reimbursement Obligation with respect to any L/C
Disbursement shall not be paid in full by the Required Reimbursement Date;
or the Guarantor shall fail to pay any Guaranteed Obligations when the
same becomes due and payable; or any interest or fees or other amounts
required to be paid hereunder shall not be paid in full within five (5)
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Guarantor or the
Account Party herein or in any certificate or other instrument furnished
pursuant to this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Account Party or the Guarantor shall fail to perform or
observe any term, covenant or agreement contained in Section 5.01(d), 5.02
or 5.03, or (ii) the Account Party or the Guarantor shall fail to perform
or observe any term, covenant or agreement contained in Section 5.01(e) or
(g) if such failure described in this clause (ii) shall remain unremedied
for five (5) Business Days after written notice thereof shall have been
given to the Account Party or the Guarantor, as applicable by the Agent or
any Lender or (iii) the Account Party or the Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure
described in this clause (iii) shall remain unremedied for thirty (30)
days after written notice thereof shall have been given to the Account
Party or the Guarantor, as applicable, by the Agent or any Lender; or
(d) The Account Party, the Guarantor or any Significant Subsidiary
shall fail to make payments (whether of principal or interest and
regardless of amount) on Material Debt, when and as the same shall become
due and payable; or any event or condition occurs that results in Material
Debt becoming due prior to the scheduled maturity of such Material Debt or
that enables or permits (with or without the giving of notice, the lapse
of time or both) the holder or holders of Material Debt or any trustee or
agent on its or their behalf to cause Material Debt to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this subsection (d) shall
not apply to secured Debt that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Debt; or
(e) The Account Party, the Beneficiaries, the Guarantor or any
Significant Subsidiary shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Account
Party, the Beneficiaries, the Guarantor, or any Significant Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
42
winding up, reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Account Party, the Beneficiaries, the
Guarantor or any Significant Subsidiary shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) One or more judgments for the payment of money in an aggregate
amount in excess of $300,000,000 (or its equivalent in any other currency)
shall be rendered against the Account Party, the Beneficiaries, the
Guarantor, or any Significant Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed; or
(g) The Account Party ceases to be a Subsidiary of the Guarantor, or
a Change of Control shall occur; or
(h) An ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Guarantor and its Significant Subsidiaries in an aggregate amount
exceeding $200,000,000 in any year; or
(i) The Guaranty shall have been determined by a competent court
to be unenforceable or the Guarantor shall have asserted in writing to
any of the Lenders or the Agent that the Guaranty is unenforceable,
then, and in any such event, the Agent (i) may, or shall at the request of the
Required Lenders, by notice to the Account Party, declare the obligation of the
Issuing Banks to issue Letters of Credit to be terminated in whole or in part,
whereupon the same shall forthwith terminate, and (ii) may, or shall at the
request of the Required Lenders, by notice to the Account Party, declare any or
all Reimbursement Obligations, all interest thereon and any or all other amounts
payable under this Agreement to be forthwith due and payable, whereupon any or
all Reimbursement Obligations, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Account Party; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Account Party under Bankruptcy Law,
(A) the obligation of the Issuing Banks to issue Letters of Credit shall
automatically be terminated and (B) all Reimbursement Obligations, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Account Party.
SECTION 6.02. Actions in Respect of Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the Agent may, or
shall at the request of the Required Lenders, irrespective of whether it is
taking any of the actions described in Section 6.01 or otherwise, make demand
upon the Account Party and/or the Guarantor to, and forthwith upon such demand
the Account Party and/or the Guarantor will, (a) pay to the Agent for the
benefit of the Lenders in same day funds at the Agent's office designated in
such demand, for deposit in the L/C Cash Deposit Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding, or (b)
make
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such other collateral arrangements in respect of the outstanding Letters of
Credit as shall be reasonably acceptable to the Required Lenders; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Guarantor under the Bankruptcy Law, the Account Party and/or
the Guarantor will automatically and without any requirement of notice pay to
the Agent on behalf of the Lenders in same day funds, for deposit to the L/C
Cash Deposit Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Account
Party and the Guarantor. If at any time the Agent determines that any funds held
in the L/C Cash Deposit Account are subject to any right or interest of any
Person other than the Agent and the Lenders or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Account Party and/or the Guarantor will, forthwith upon demand by the Agent, pay
to the Agent, as additional funds to be deposited and held in the L/C Cash
Deposit Account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in the L/C Cash
Deposit Account that are free and clear of any such right and interest. Upon the
drawing of any Letter of Credit, to the extent funds are on deposit in the L/C
Cash Deposit Account, such funds shall be applied to reimburse the Issuing Banks
to the extent permitted by applicable law, and if so applied, then such
reimbursement shall be deemed a repayment of the corresponding L/C Disbursement,
if any, in respect of such Letter of Credit; provided that, to the extent cash
collateral is on deposit in the L/C Cash Deposit Account pursuant to Section
2.02(j)(i)(C), such cash collateral shall be applied only to an L/C Disbursement
made under Participated Letters of Credit. To the extent that the cash amount
deposited in the L/C Cash Deposit Account exceeds the Available Amount of all
Letters of Credit plus all fees, costs and expenses that may be payable on or
before the Termination Date, and all other obligations of the Account Party
hereunder, such excess shall be promptly returned to the Account Party or the
Guarantor upon written request therefor.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of the Account Party now
or hereafter existing under or in respect of this Agreement (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing obligations), whether direct or indirect,
absolute or contingent, and whether for Reimbursement Obligations, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, fees and expenses of
counsel) incurred by the Agent or any Lender in enforcing any rights under this
Agreement. Without limiting the generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Account Party to the Agent or any Lender
under or in respect of this Agreement but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Account Party.
SECTION 7.02. Guaranty Absolute. (a) The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The obligations of the Guarantor under
or in respect of this Guaranty are absolute, unconditional and independent of
the Guaranteed Obligations or any other obligations of the Account Party under
or in respect of this Agreement, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Account Party or whether the Account
Party is joined in any such action
44
or actions; provided that the Guarantor shall retain all the defenses that the
Guarantor would have had if it were jointly and severally liable with the
Account Party for the Account Party's obligations under this Agreement (it being
understood and agreed in any event that the Guarantor waives all suretyship
defenses, including those set forth below in this Section 7.02). The liability
of the Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and, to the fullest extent permitted by law, the
Guarantor hereby irrevocably waives any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of this Agreement, or any
agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
obligations of the Account Party under or in respect of this Agreement, or
any other amendment or waiver of or any consent to departure from this
Agreement, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Account Party or any of its Subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent
to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(iv) any manner of application of any collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of the Account Party under
this Agreement or any other assets of the Account Party or any of its
Subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of the Account Party or any of its Subsidiaries;
(vi) any failure of the Agent or any Lender to disclose to the
Account Party any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects
of the Account Party now or hereafter known to the Agent or such Lender
(the Guarantor waiving any duty on the part of the Agent and the Lenders
to disclose such information);
(vii) the failure of any other Person to execute or deliver this
Guaranty or any other guaranty or agreement or the release or reduction of
liability of the Guarantor or other guarantor or surety with respect to
the Guaranteed Obligations; or
(viii)any other circumstance other than payment in full of the
Guaranteed Obligations (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the
Agent or any Lender that might otherwise constitute a defense available
to, or a discharge of, the Account Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of the Account Party or
otherwise, all as though such payment had not been made.
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SECTION 7.03. Waivers and Acknowledgments. (a) The Guarantor hereby
unconditionally and irrevocably waives, to the fullest extent permitted by law,
promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Guaranteed Obligations
and this Guaranty and any requirement that the Agent or any Lender protect,
secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against the Account Party or any other Person or
any collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by the Agent or any Lender that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Guarantor or other
rights of the Guarantor to proceed against the Account Party, any other
guarantor or any other Person or any collateral and (ii) any defense based on
any right of set-off or counterclaim against or in respect of the obligations of
the Guarantor hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to the Guarantor any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Account
Party or any of its Subsidiaries now or hereafter known by the Agent or such
Lender.
(e) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
this Agreement and that the waivers set forth in Section 7.02 and this Section
7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Account Party or any other insider guarantor that arise from
the existence, payment, performance or enforcement of the Guarantor's
obligations under or in respect of this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Agent
or any Lender against the Account Party or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Account Party or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or been terminated. If any amount shall be paid to the Guarantor in
violation of the immediately preceding sentence at any time prior to the later
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and (b) the Termination Date, such amount
shall be received and held in trust for the benefit of the Agent and the
Lenders, shall be segregated from other property and funds of the Guarantor and
shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of this
Agreement, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) the Guarantor
shall make payment to the Agent or any Lender of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this
46
Guaranty shall have been paid in full in cash and (iii) the Termination Date
shall have occurred, the Agent and the Lenders will, at the Guarantor's request
and expense, execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by the Guarantor pursuant to this
Guaranty.
SECTION 7.05. Subordination. The Guarantor hereby subordinates any
and all debts, liabilities and other obligations owed to the Guarantor by the
Account Party (the "Subordinated Obligations") to the Guaranteed Obligations to
the extent and in the manner hereinafter set forth in this Section 7.05:
(a) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to the Account Party, the Guarantor agrees
that the Agent and the Lenders shall be entitled to receive payment in
full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such
proceeding ("Post Petition Interest")) before the Guarantor receives
payment of any Subordinated Obligations.
(b) Turn-Over. After the occurrence and during the continuance of
any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to the Account Party), the Guarantor
shall, if the Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Agent and the
Lenders and deliver such payments to the Agent on account of the
Guaranteed Obligations (including all Post Petition Interest), together
with any necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of the Guarantor
under the other provisions of this Guaranty.
(c) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to the Account Party),
the Agent is authorized and empowered (but without any obligation to so
do), in its discretion, (i) in the name of the Guarantor, to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and
to apply any amounts received thereon to the Guaranteed Obligations
(including any and all Post Petition Interest), and (ii) to require the
Guarantor (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such
obligations to the Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty of payment and shall (a) remain in full force and effect
until the later of (i) the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Guaranty and (ii) the Termination Date,
(b) be binding upon the Guarantor, its successors and assigns and (c) inure to
the benefit of and be enforceable by the Agent and the Lenders and their
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, the Agent or any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments,
the L/C Disbursements owing to it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to the Agent or such Lender herein or otherwise, in each case as and to the
extent provided in Section 9.07. The Guarantor shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Agent and the Lenders.
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ARTICLE VIII
THE AGENT, ETC.
SECTION 8.01. Authorization and Action. Each Lender (in its
capacities as a Lender and Issuing Bank, as applicable) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice and communication given to it by the Account Party pursuant to the terms
of this Agreement.
SECTION 8.02. Reliance, Etc. Neither the Agent nor any Issuing Bank
nor any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross negligence or
willful misconduct or (a) as to Wachovia as the "Agent" (as defined in the
Syndicated Letters of Credit) for the Syndicated Letters of Credit and as
Issuing Bank with respect to Participated Letters of Credit, its willful failure
in such capacities to make lawful payment under a Letter of Credit after the
presentation to it of drafts and certificates strictly complying with the terms
and conditions of the Letter of Credit and, in the case of a Syndicated Letter
of Credit, after its receipt of appropriate funds from the other Lenders with
Syndicated Commitments and (b) as to Issuing Banks under Syndicated Letters of
Credit, any such Issuing Bank's willful failure to make payment to Wachovia as
"Agent" (as defined in the Syndicated Letters of Credit) under a Syndicated
Letter of Credit after Wachovia as such "Agent" has confirmed to the Issuing
Bank that drafts and documents strictly complying with the terms of such
Syndicated Letter of Credit have been presented. Without limitation of the
generality of the foregoing, the Agent: (a) may treat the Lender that made any
L/C Disbursement as the holder of the Debt resulting therefrom until the Agent
receives and accepts an Assignment and Acceptance entered into by a Lender, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for the Guarantor),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (d) shall not have any duty
to ascertain or to inquire as to the performance, observance or satisfaction of
any of the terms, covenants or conditions of this Agreement on the part of the
Account Party or the Guarantor or the existence at any time of any Default or to
inspect the property (including the books and records) of the Guarantor; (e)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (f) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Wachovia and Affiliates. With respect to its
Commitments, the L/C Disbursements made by it, Wachovia shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Wachovia in its individual
capacity.
48
Wachovia and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Guarantor, any of its
Subsidiaries and any Person who may do business with or own securities of the
Guarantor or any such Subsidiary, all as if Wachovia were not the Agent and
without any duty to account therefor to the Lenders. The Agent shall have no
duty to disclose any information obtained or received by it or any of its
Affiliates relating to the Guarantor or any of its Subsidiaries to the extent
such information was obtained or received in any capacity other than as Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not promptly reimbursed by the Account Party
or the Guarantor) from and against such Lender's Ratable Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement, to the extent any such claim relates to an event arising on or
after the Closing Date (collectively, the "Indemnified Costs"); provided that no
Lender shall be liable for any portion of the Indemnified Costs resulting from
the Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its Ratable Share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Account Party. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Account Party or the Guarantor) from
and against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against any such Issuing Bank in any way relating to or arising
out of this Agreement or any action taken or omitted by such Issuing Bank
hereunder or in connection herewith, to the extent any such claim relates to an
event arising on or after the Closing Date; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Issuing Bank's gross negligence or willful misconduct or (a)
in the case of Wachovia as the "Agent" (as defined in the Syndicated Letters of
Credit) for Syndicated Letters of Credit and Issuing Bank with respect to the
Participated Letters of Credit, its willful failure to make lawful payment under
a Letter of Credit after the presentation to it of drafts and certificates
strictly complying with the terms and conditions of the Letter of Credit and in
the case of a Syndicated Letter of Credit, after its receipt of appropriate
funds from the other Lenders with Syndicated Commitments, and (b) as to Issuing
Banks under Syndicated Letters of Credit, any such Issuing Bank's willful
failure to make payment to Wachovia as "Agent" (as defined in the Syndicated
Letters of Credit) under a Syndicated Letter of Credit after Wachovia as such
"Agent" has confirmed to the Issuing Bank that drafts and documents strictly
complying with the terms of such Syndicated Letter of Credit have been
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presented. Without limitation of the foregoing, each Lender agrees to reimburse
any such Issuing Bank promptly upon demand for its Ratable Share of any costs
and expenses (including, without limitation, fees and expenses of counsel)
payable by the Account Party under Section 9.04, to the extent that such Issuing
Bank is not promptly reimbursed for such costs and expenses by the Account
Party.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Ratable Share of any amount required to be
paid by the Lenders to the Agent as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank
for its Ratable Share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such
other Lender's Ratable Share of such amount. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder. Each of the Agent
and each Issuing Bank agrees to return to the Lenders their respective Ratable
Shares of any amounts paid under this Section 8.05 that are subsequently
reimbursed by the Account Party.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving at least 30 days' prior written notice thereof to the Lenders, the
Account Party and the Guarantor. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent, with the consent (so long as
no Event of Default has occurred and is continuing) of the Guarantor, which
consent shall not be unreasonably withheld or delayed. If no successor Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $1,000,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
VIII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement.
SECTION 8.07. No Responsibility. It is understood and agreed by all
parties hereto that neither the Arrangers, the Co-Administrative Agents, the
Co-Syndication Agents nor the Documentation Agent shall have any duties or
responsibilities hereunder or in connection herewith.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Account Party
or the Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all affected Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders, (c) reduce the amount of, or interest
on, any Reimbursement Obligations or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of, or interest on, any
Reimbursement Obligations or any fees or other amounts payable hereunder or
extend the Termination Date, (e) change the percentage of the Commitments or of
the aggregate Credit Exposure, the number of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder, or the definition of
Required Lenders, (f) reduce or limit the obligations of the Guarantor under
Section 7.01 or release the Guarantor or otherwise limit the Guarantor's
liability to the Agent and
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the Lenders under Section 7.01 or (g) amend this Section 9.01; provided further
(x) no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement and (y) no amendment, waiver
or consent shall, unless in writing and signed by the Issuing Banks in addition
to the Lenders required above to take such action, adversely affect the rights
or obligations of the Issuing Banks in their capacities as such under this
Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by Lenders holding at least 66-2/3% of the
aggregate Credit Exposure at such time, and if there is no Credit Exposure at
such time, Lenders holding 66-2/3% of the Commitments at such time, amend
Section 5.01(g)(iii)(1) or 5.01(g)(iv).
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered or (y) as and to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), if to the Account Party, at its address at 00
Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx Xxxxxxxx, with a
copy to The Travelers Insurance Company, Xxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000-0000, Attention: Xxxxx Xxxxxxx; if to the Guarantor, at its address at One
MetLife Plaza, Area 7B, 00-00 Xxxxxx Xxxxx Xxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxxxxxx, Treasurer; if to any Initial Lender, at
its Lending Office specified opposite its name on Schedule I hereto; if to any
other Lender, at its Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at 000
Xxxxx Xxxxxxx Xxxxxx, XX 0760, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000, Attention: Xxxx
Xxxxxx; or, as to the Account Party, the Guarantor or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Account Party and the Agent,
provided that materials required to be delivered pursuant to Section 5.01(g)(i),
(ii), (iii), (iv) or (vi) shall be delivered to the Agent as specified in
Section 9.02(b) or as otherwise specified to the Account Party by the Agent;
provided further that any certificate to be delivered to the Agent or an Issuing
Bank by a Secretary, Assistant Secretary or a financial officer of any Person
pursuant to or in connection with the requirements of this Agreement shall be
delivered in hard copy if so requested by the Agent or an Issuing Bank. All such
notices and communications shall, when mailed, telecopied, telegraphed or
e-mailed, be effective when received or confirmed by e-mail, respectively.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) Materials required to be delivered pursuant to Section
5.01(g)(i), (ii), (iii), (iv) or (vi) may be delivered to the Agent in an
electronic medium in a format reasonably acceptable to the Agent and the Lenders
by e-mail to an address designated by the Agent or in such other manner as the
Account Party and the Agent may from time to time agree; provided that any
certificate to be delivered to the Agent or an Issuing Bank by a Secretary,
Assistant Secretary or a financial officer of any Person pursuant Section
5.01(g)(i), (ii), (iii), (iv) or (vi) shall be delivered in hard copy, if so
requested by the Agent or an Issuing Bank; provided, further that upon the
posting on the Guarantor's public website of any materials required to be
delivered by Section 5.01(g)(iv), such material shall be deemed delivered to the
Agent and the Lenders. The Guarantor agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Guarantor, any of its Subsidiaries or any other
materials or matters relating to this Agreement, or any of the transactions
contemplated hereby (collectively, the "Communications") available to the
Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the "Platform"). The Guarantor acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
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completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies; Entire Agreement. No failure on
the part of any Lender or the Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. This Agreement
constitute the entire agreement of the Parties with respect hereto.
SECTION 9.04. Costs and Expenses. (a) The Guarantor agrees to pay on
demand all reasonable costs and expenses of the Agent and the Arrangers in
connection with the negotiation, preparation, execution, delivery,
administration, modification and amendment of this Agreement, and the other
documents to be delivered hereunder, including, without limitation, (i) all due
diligence, syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, consultant, and audit expenses and (ii)
the reasonable fees and expenses of one primary counsel for the Agent and the
Arrangers with respect thereto and with respect to advising the Agent and the
Arrangers as to its rights and responsibilities under this Agreement. The
Guarantor further agrees to pay on demand all costs and expenses of the Agent
and the Lenders, if any (including, without limitation, counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder, including, without limitation, fees and expenses of counsel
for the Agent and each Lender in connection with the enforcement of rights under
this Section 9.04(a).
(b) The Guarantor agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith), this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the L/C
Disbursements, except to the extent such claim, damage, loss, liability or
expense (i) is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or (ii) is the result of claims of Lenders or the Agent
against other Lenders or the Agent that are not attributable to the Account
Party's or the Guarantor's actions and for which the Account Party and the
Guarantor otherwise has no liability. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.04(b)
applies, such indemnity shall be effective whether or not such
52
investigation, litigation or proceeding is brought by the Account Party or the
Guarantor, or any of their directors, equityholders or creditors or an
Indemnified Party or any other Person, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Account Party and the Guarantor also agree not to
assert any claim for special, indirect, consequential or punitive damages
against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the L/C Disbursements.
(c) Without prejudice to the survival of any other agreement of the
Account Party and the Guarantor hereunder, the agreements and obligations of the
Account Party and the Guarantor contained in Sections 2.10, 2.12 and 9.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the obligations under this Agreement due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Account Party or the Guarantor against any and all of the obligations of
the Account Party now or hereafter existing under this Agreement, whether or not
such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Account
Party or the Guarantor, as the case may be, after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. Upon (a) the satisfaction of the
conditions precedent set forth in Section 3.01, Sections 2.03(d) and 2.11 and
Articles VIII and IX shall become effective and (b) the satisfaction of the
conditions precedent set forth in Section 3.02, the remaining sections of the
Agreement shall become effective and, in each case thereafter, such sections
shall be binding upon and inure to the benefit of the Account Party, the
Guarantor, the Agent and each Lender and their respective successors and
assigns, except that neither the Account Party nor the Guarantor shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Account Party (following a demand by such Lender
pursuant to Section 2.10 or 2.12) or by Wachovia or the Account Party in
accordance with Section 2.02(k) upon at least five Business Days' notice to such
Lender and the Agent, will assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, its Unused Commitment, the
Reimbursement Obligations owing to it, and its participations or position in
Letters of Credit); provided, however, that (i) each such assignment shall be of
a constant, and not a varying, percentage of all rights and obligations under
this Agreement related to the Commitments assigned thereby, (ii) except in the
case of an assignment to an Eligible Assignee that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment or Unused
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than an aggregate amount
of $5,000,000 and increments of $1,000,000 in excess thereof, (iii) each such
assignment shall be
53
to an Eligible Assignee, (iv) each such assignment made as a result of a demand
by the Account Party pursuant to this Section 9.07(a) shall be arranged by the
Account Party after consultation with the Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Account Party pursuant to this Section 9.07(a)
unless and until such Lender shall have received one or more payments from
either the Account Party or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the
Reimbursement Obligations owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Lender under this Agreement, (vi) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance and a processing and
recordation fee of $3,500 payable by the parties to each such assignment,
provided further, however, that in the case of each assignment made as a result
of a demand by the Account Party, such recordation fee shall be payable by the
Account Party except that no such recordation fee shall be payable in the case
of an assignment made at the request of the Account Party to an Eligible
Assignee that is an existing Lender, and (vii) each assignment of Unused
Commitment shall be subject to the approval of the Account Party, such approval
not be unreasonably withheld or delayed, PROVIDED FURTHER, HOWEVER, THAT NO
LENDER MAY ASSIGN ANY OBLIGATION UNDER A SYNDICATED LETTER OF CREDIT UNLESS AN
AMENDMENT, MODIFICATION OR SUPPLEMENT TO SUCH SYNDICATED LETTER OF CREDIT
APPROVED BY THE BENEFICIARY AND THE AGENT IS CONCURRENTLY DELIVERED TO THE AGENT
REMOVING OR ADJUSTING, AS THE CASE MAY BE, THE ASSIGNOR'S SYNDICATED COMMITMENT
AND SYNDICATED REIMBURSEMENT OBLIGATION AND REPLACING OR ADJUSTING THE SAME WITH
A SYNDICATED COMMITMENT (AND SYNDICATED REIMBURSEMENT OBLIGATION OF) THE
ASSIGNEE. Each Lender may assign to any Federal Reserve Bank as security, all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, its Unused Commitment, the
Reimbursement Obligations owing to it, and its participations in Letters of
Credit) without the consent of the Account Party or the Agent. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations (other than its obligations under Section 8.05 to the extent any
claim thereunder relates to an event arising prior such assignment) under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Account Party of the Guarantor or the
performance or observance by the Account Party or the Guarantor of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto;
54
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will 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 a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Account Party and the Guarantor.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the L/C Disbursements owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Account
Party, the Guarantor, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Account Party,
the Guarantor or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender (including, for these purposes, Wachovia, as Issuing
Bank of Participated Letters of Credit) may sell participations to one or more
banks or other entities (other than the Guarantor or any of its Affiliates) in
or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the L/C
Disbursements owing to it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Account Party hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the Account Party, the Guarantor, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(iv) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement, or any consent to
any departure by the Account Party or the Guarantor therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Guarantor furnished to such Lender
by or on behalf of the Guarantor; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Guarantor Information relating to the
Guarantor received by it from such Lender.
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(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, Reimbursement
Obligations owing to it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender may
disclose to any third Person any confidential, proprietary or non-public
information of the Guarantor or any of its Subsidiaries furnished to the Agent
or the Lenders by or on behalf of the Guarantor or any of its Subsidiaries (such
information being referred to collectively herein as the "Guarantor
Information"), except that each of the Agent and each of the Lenders may
disclose Guarantor Information (a) to its and its affiliates' employees,
officers, directors, agents and advisors (it being understood that such
disclosure shall be made solely in connection with the transactions contemplated
hereby and the Persons to whom such disclosure is made will be informed of the
confidential nature of such Guarantor Information and instructed to keep such
Guarantor Information confidential on substantially the same terms as provided
herein), (b) to the extent requested by any regulatory authority, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process (and in the event of any such disclosure under this clause (c),
the disclosing party shall give prompt notice to the Account Party and the
Guarantor thereof to the extent permitted by applicable law), (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section 9.08, to any assignee
or participant or prospective assignee or participant, (g) to the extent such
Guarantor Information (i) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 9.08
by the Agent or such Lender, or (ii) is or becomes available to the Agent or
such Lender on a nonconfidential basis from a source other than the Guarantor,
(h) subject to an agreement containing provisions substantially the same as
those of this Section 9.08, and with the consent of the Guarantor (which consent
shall not be unreasonably withheld), to any actual or prospective counterparty
(or its advisors) to any securitization, swap or derivative transaction relating
to the Account Party, the Guarantor, any Subsidiaries and the Reimbursement
Obligations; and (i) with the consent of the Guarantor. Notwithstanding the
foregoing, the Agent and each Lender may disclose Guarantor Information, without
notice to the Guarantor, to governmental regulatory authorities in connection
with any regulatory examination of the Agent or any Lender or in accordance with
the Agent's or any Lender's regulatory compliance policy if the Agent or any
Lender deems it necessary for the mitigation of claims by those authorities
against the Agent or any Lender or any of their respective subsidiaries or
affiliates.
SECTION 9.09. Governing Law. Agreement, and the Letters of Credit.
(a) THE AGREEMENT. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) LETTERS OF CREDIT. THE LETTERS OF CREDIT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE UNIFORM CUSTOMS AND PRACTICES FOR
DOCUMENTARY CREDITS (1993 REVISION) INTERNATIONAL CHAMBER OF COMMERCE
(PUBLICATION NO. 500) AND, TO THE EXTENT NOT INCONSISTENT THEREWITH, THE LAWS OF
THE STATE OF CONNECTICUT.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
56
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
The Account Party and the Guarantor hereby irrevocably consent to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to the Account
Party or the Guarantor at its address specified pursuant to Section 9.02. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Connecticut State court or federal court of the United
States of America sitting in Hartford, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Letters of Credit,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in any such
Connecticut State court or, to the extent permitted by law, in such federal
court. The Account Party and the Guarantor hereby irrevocably consent to the
service of process in any action or proceeding in such courts by the mailing
thereof by any parties hereto by registered or certified mail, postage prepaid,
to the Account Party or the Guarantor at its address specified pursuant to
Section 9.02. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to the Letters of Credit in the
courts of any jurisdiction.
(d) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to the Letters of Credit in any
Connecticut State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.12. No Liability of the Issuing Banks. The Account Party
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
an Issuing Bank nor any of its officers or directors shall be liable or
responsible for (and the Account Party hereby waives any rights to make any
claims against such Persons with respect to): (a) the use that may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all
57
respects invalid, insufficient, fraudulent or forged; (c) payment by such
Issuing Bank against presentation of documents that do not comply with the terms
of a Letter of Credit, including failure of any documents to bear any reference
or adequate reference to the Letter of Credit; (d) any other circumstances
whatsoever in making or failing to make payment under any Letter of Credit; and
(e) insofar as any Issuing Bank or Lender other than Wachovia is concerned, any
actions taken by Wachovia, as Issuing Bank with respect to Participated Letters
of Credit and as the "Agent" (as defined in the Syndicated Letters of Credit)
with respect to Syndicated Letters of Credit, on behalf of the Issuing Banks or
any Lender, except that (x) the Account Party shall have a claim against
Wachovia, as Issuing Bank with respect to Participated Letters of Credit and as
the "Agent" (as defined in the Syndicated Letters of Credit) with respect to
Syndicated Letters of Credit and/or in the case of clause (ii)(B) below an
Issuing Bank with respect to Syndicated Letters of Credit, and (y) Wachovia,
acting in the capacities as aforesaid, shall be liable to the Account Party, in
each case to the extent of any direct, but not consequential, damages suffered
by the Account Party that the Account Party proves were caused by (i) Wachovia's
willful misconduct or gross negligence in acting in the capacities aforesaid as
determined in a final, non-appealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of such Letter of Credit or (ii) (A) Wachovia's
failure, as a result of its willful misconduct or gross negligence, in acting in
the capacities aforesaid to make lawful payment under a Letter of Credit after
the presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit and after its receipt of
appropriate funds from the other Lenders with Syndicated Commitments or (B) an
Issuing Bank's failure, as a result of its willful misconduct or gross
negligence, to make payment to Wachovia as "Agent" (as defined in the Syndicated
Letters of Credit) under a Syndicated Letter of Credit after Wachovia as such
"Agent" has confirmed to such Issuing Bank that drafts and documents strictly
complying with the terms of such Syndicated Letter of Credit have been
presented. In furtherance and not in limitation of the foregoing, Wachovia, as
Issuing Bank with respect to Participated Letters of Credit and as "Agent" (as
defined in the Syndicated Letters of Credit) with respect to Syndicated Letters
of Credit may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.13. WAIVER OF JURY TRIAL. EACH OF THE ACCOUNT PARTY, THE
GUARANTOR, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE L/C RELATED
DOCUMENTS OR THE ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 9.14. Patriot Act Notice. Each Lender and the Agent (for
itself and not on behalf of any Lender) hereby notifies the Account Party and
the Guarantor that pursuant to the requirements of the Patriot Act, it is
required to obtain, verify and record information that identifies the Account
Party or the Guarantor, which information includes the name and address of the
Account Party and the Guarantor and other information that will allow such
Lender or the Agent, as applicable, to identify the Account Party or the
Guarantor in accordance with the Patriot Act. The Account Party and the
Guarantor shall, and shall cause each of their Subsidiaries to, provide, to the
extent commercially reasonable, such information and take such actions as are
reasonably requested by the Agent or any Lenders in order to assist the Agent
and the Lenders in maintaining compliance with the Patriot Act.
58
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE TRAVELERS LIFE AND ANNUITY
REINSURANCE COMPANY,
as Account Party
By /s/ Xxxx Xxxxxx
----------------------
Title: President
METLIFE, INC.,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------
Title: SVP and Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By /s/ Xxxxxxx Xxxxx
-----------------------
Title: Director
59
Initial Lenders
Syndicated Participated
Commitment Commitment
$200,000,000 $0 Citibank, N.A.
By: /s/ Xxxxx X. Dodge
------------------------------
Name: Xxxxx X. Dodge
Title: Managing Director
$155,000,000 $0 Wachovia Bank, N.A.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
$155,000,000 $0 BNP Paribas
By: /s/ Xxxx Xxxxxxxxx By: /s/ Laurent Vanderzyppe
------------------------------ ------------------------------
Name: Xxxx Xxxxxxxxx Name: Laurent Vanderzyppe
Title: Director Title: Director
$155,000,000 $0 Lloyds TSB Bank plc
By: /s/ Xxxxx X. Xxxx /s/ Xxxxxxx X.X. Tuck
------------------------------ ------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxxx X.X. Tuck
Title: Vice President Title: Vice President
Financial Institutions, USA Financial Institutions, USA
$0 $155,000,000 Danske Bank A/G
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Manager
$125,000,000 $0 Commerzbank AG, New York Branch
By: /s/ Xxxxxx X. Araw /s/ Xxxxxxx X. XxXxxxxx
------------------------------ ------------------------------
Name: Xxxxxx X. Araw Xxxxxxx X. XxXxxxxx
Title: Assistant Treasurer Vice President
$125,000,000 $0 Landesbank Hessen- Thuringen Girozentrale
By: /s/ Xxxx X. Xxxxx /s/ Xxxxx Xxxxxxx
------------------------------ ------------------------------
Name: Xxxx X. Xxxxx Xxxxx Xxxxxxx
Title: Vice President Credit Analyst
Financial Institutions
Public Finance
60
Title:
$85,000,000 $0 Banco Santander Central Hispano, S.A.
By: /s/ Xxxxx Xxxxxxxx /s/ Xxxxxx X. Xxxxx
---------------------------- ------------------------------
Name: Xxxxx Xxxxxxxx Xxxxxx X. Xxxxx
Title: Vice President & Manager Vice President
$85,000,000 $0 Bank of America, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
$85,000,000 $0 The Bank of Tokyo-Mitsubishi, Ltd., New
York Branch
By: /s/ Xxxxx X. Xxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Authorized Signatory
$85,000,000 $0 Mizuho Corporate Bank, Ltd.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
$85,000,000 $0 Royal Bank of Canada
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
$85,000,000 $0 SANPAOLO IMI S.p.A.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
$85,000,000 $0 Sumitomo Mitsui Banking Corporation
By: /s/ Xxxxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Deputy General Manager
61
$85,000,000 $0 Well Fargo Bank, National Association
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxx XxXxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxx Xxxx XxXxxxxx
Title: Senior Vice President Senior Vice President
$50,000,000 $0 Banco Bilbao Vizcaya Argentaria, S.A.
By: /s/ Xxxxxxxx Xxxxxxxxx /s/ Giampaolo Consigliere
----------------------------------- -----------------------------------
Name: Xxxxxxxx Xxxxxxxxx Giampaolo Consigliere
Title: Vice President Vice President
$0 $50,000,000 ING Bank, N.V.
By: /s/ C. Pattigan /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------- -----------------------------------
Name: C. Pattigan Xxxxxxxx Xxxxxxxxx
Title: Director Vice President
$50,000,000 $0 Mellon Bank, N.A.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
$50,000,000 $0 Standard Chartered Bank
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xx
-----------------------------------
Name: Xxxxxx X. Xx
Title: Vice President
Standard Chartered Bank NY
$25,000,000 $0 Australia and New Zealand Banking Group
Limited
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Director
$25,000,000 $0 PNC Bank, National Association
By: /s/ D. Xxxx Xxxxxxx
-----------------------------------
Name: D. Xxxx Xxxxxxx
Title: Vice President & Director
62
