EXHIBIT 10.1
EXECUTION COPY
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Published CUSIP Number: ▇▇▇▇▇▇▇▇▇
FIVE-YEAR CREDIT AGREEMENT
Dated as of April 23, 2004
among
METLIFE, INC.
METROPOLITAN LIFE INSURANCE COMPANY
METLIFE FUNDING, INC.
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,
WACHOVIA CAPITAL MARKETS, LLC,
as Syndication Agent
CITIBANK, N.A.
and
JPMORGAN CHASE BANK,
as Co-Documentation Agents
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
and
WACHOVIA CAPITAL MARKETS, LLC
as
Joint Lead Arrangers and Book Managers
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TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS................................ 1
1.01 Defined Terms....................................................... 1
1.02 Other Interpretive Provisions....................................... 18
1.03 Accounting Terms.................................................... 19
1.04 Rounding............................................................ 19
1.05 References to Agreements and Laws................................... 19
1.06 Times of Day........................................................ 20
1.07 Letter of Credit Amounts............................................ 20
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS........................... 20
2.01 Committed Loans..................................................... 20
2.02 Borrowings, Conversions and Continuations of Committed Loans........ 20
2.03 Bid Loans........................................................... 22
2.04 Letters of Credit................................................... 24
2.05 Prepayments......................................................... 33
2.06 Termination or Reduction of Commitments............................. 33
2.07 Repayment of Loans.................................................. 34
2.08 Interest............................................................ 34
2.09 Fees................................................................ 35
2.10 Computation of Interest and Fees.................................... 36
2.11 Evidence of Debt.................................................... 36
2.12 Payments Generally.................................................. 37
2.13 Sharing of Payments................................................. 38
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.......................... 39
3.01 Taxes............................................................... 39
3.02 Illegality.......................................................... 41
3.03 Inability to Determine Rates........................................ 42
3.04 Increased Cost and Reduced Return; Capital Adequacy................. 42
3.05 Compensation for Losses............................................. 43
3.06 Matters Applicable to all Requests for Compensation................. 43
3.07 Survival............................................................ 44
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.................................. 44
4.01 Organization; Powers................................................ 44
4.02 Authorization; Enforceability....................................... 44
4.03 Governmental Approvals; No Conflicts................................ 44
4.04 Financial Condition; No Material Adverse Change..................... 44
4.05 Properties.......................................................... 45
4.06 Litigation and Environmental Matters................................ 45
4.07 Compliance with Laws and Agreements................................. 45
4.08 Investment and Holding Company Status............................... 45
4.09 Taxes............................................................... 46
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TABLE OF CONTENTS
(continued)
Section Page
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4.10 ERISA................................................................. 46
4.11 Disclosure............................................................ 46
4.12 Margin Stock.......................................................... 46
ARTICLE V. CONDITIONS TO CREDIT EXTENSIONS................................... 46
5.01 Closing Date.......................................................... 46
5.02 Each Credit Event..................................................... 47
ARTICLE VI. AFFIRMATIVE COVENANTS............................................. 48
6.01 Financial Statements and Other Information............................ 48
6.02 Notices of Defaults................................................... 49
6.03 Existence; Conduct of Business........................................ 49
6.04 Payment of Obligations................................................ 49
6.05 Maintenance of Properties; Insurance.................................. 49
6.06 Books and Records; Inspection Rights.................................. 50
6.07 Compliance with Laws.................................................. 50
6.08 Use of Proceeds....................................................... 50
6.09 Support Agreement..................................................... 50
ARTICLE VII. NEGATIVE COVENANTS................................................ 50
7.01 Liens................................................................. 50
7.02 Fundamental Changes................................................... 52
7.03 Transactions with Affiliates.......................................... 52
7.04 Adjusted Statutory Surplus............................................ 52
7.05 Consolidated Net Worth................................................ 52
ARTICLE VIII. EVENTS OF DEFAULT................................................. 53
8.01 Events of Default..................................................... 53
8.02 Remedies Upon Event of Default........................................ 54
8.03 Application of Funds.................................................. 55
ARTICLE IX. ADMINISTRATIVE AGENT.............................................. 56
9.01 Appointment and Authorization of Administrative Agent................. 56
9.02 Delegation of Duties.................................................. 56
9.03 Liability of Administrative Agent..................................... 56
9.04 Reliance by Administrative Agent...................................... 57
9.05 Notice of Default..................................................... 57
9.06 Credit Decision; Disclosure of Information by Administrative Agent.... 58
9.07 Indemnification of Administrative Agent............................... 58
9.08 Administrative Agent in its Individual Capacity....................... 59
9.09 Successor Administrative Agent........................................ 59
9.10 Administrative Agent May File Proofs of Claim......................... 60
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TABLE OF CONTENTS
(continued)
Section Page
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9.11 Other Agents; Joint Lead Arrangers and Book Managers.................. 60
ARTICLE X. MISCELLANEOUS..................................................... 61
10.01 Amendments, Etc....................................................... 61
10.02 Notices and Other Communications; Facsimile Copies.................... 62
10.03 No Waiver; Cumulative Remedies........................................ 63
10.04 [Intentionally Omitted]............................................... 63
10.05 Costs, Expenses and Indemnification................................... 63
10.06 Payments Set Aside.................................................... 64
10.07 Successors and Assigns................................................ 64
10.08 Confidentiality....................................................... 68
10.09 Set-off............................................................... 69
10.10 Interest Rate Limitation.............................................. 69
10.11 Counterparts.......................................................... 69
10.12 Integration........................................................... 70
10.13 Survival of Representations and Warranties............................ 70
10.14 Severability.......................................................... 70
10.15 Mitigation of Obligations; Replacement of Lenders..................... 70
10.16 Governing Law......................................................... 71
10.17 Waiver of Right to Trial by Jury...................................... 71
10.18 USA PATRIOT Act Notice................................................ 72
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1 SCHEDULES
2 1.01 Existing Letters of Credit
3 2.01 Commitments and Pro Rata Shares
4 4.06 Disclosed Matters
5 10.02 Administrative Agent's Office, Certain Addresses for Notices
6
7 EXHIBITS
8 A Form of Committed Loan Notice
9 B-1 Form of Bid Request
10 B-2 Form of Competitive Bid
11 C Form of Note
12 D Form of Assignment and Assumption
13 E Form of Opinion
14
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FIVE-YEAR CREDIT AGREEMENT
This FIVE-YEAR CREDIT AGREEMENT ("Agreement") is entered into as of April
23, 2004, among METLIFE, INC. ("MetLife"), METROPOLITAN LIFE INSURANCE COMPANY
(the "Company") and METLIFE FUNDING, INC. ("Funding"; together with the Company
and MetLife, each a "Borrower" and collectively the "Borrowers"), each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), WACHOVIA CAPITAL MARKETS, LLC, as Syndication Agent and BANK OF
AMERICA, N.A., as Administrative Agent and L/C Issuer.
The Borrowers have requested that (a) the Lenders provide a revolving
credit facility and (b) the L/C Issuer issue (and the Lenders purchase
participations in) letters of credit from time to time, and the Lenders and the
L/C Issuer are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate.
"Adjusted Statutory Surplus" means, at any time, the sum of (i) surplus
(calculated in accordance with the Statutory Statements), plus (ii) asset
valuation reserve (calculated in accordance with the Statutory Statements).
"Administrative Agent" means Bank of America in its capacity as
administrative agent under each of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
as set forth on Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify the Borrowers and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; provided
that, for the purposes of Section 10.07, any special purpose funding vehicle
that funds itself principally in the commercial paper market shall not
constitute
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an Affiliate of any Lender. "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arrangers), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all of the Lenders. On
the date hereof the Aggregate Commitments shall equal $1,500,000,000.
"Agreement" means this Five-Year Credit Agreement.
"Applicable Insurance Regulatory Authority" means the insurance department
or similar insurance regulatory or administrative authority or agency of the
jurisdiction in which the Company is domiciled.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Rating of the applicable Borrower as set forth below:
APPLICABLE RATE
EURODOLLAR
RATE
MARGIN AND
PRICING DEBT RATING LETTER OF BASE UTILIZATION
LEVEL S&P/▇▇▇▇▇'▇ FACILITY FEE CREDIT FEE RATE FEE
------- ----------------- ------------ ------------- ---- -----------
1 A+/A1 or better 0.080 0.170 0 0.050
2 A/A2 0.090 0.210 0 0.050
3 A-/A3 0.125 0.225 0 0.100
4 BBB+/Baa1 0.150 0.250 0 0.100
5 BBB/Baa2 0.200 0.425 0 0.125
or worse
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or ▇▇▇▇▇'▇ (collectively, the "Debt Ratings") of
the applicable Borrower's non-credit-enhanced, senior unsecured long-term
debt (or in the case of Funding, the non-credit-enhanced, senior unsecured
long-term debt of the Company) provided that if a Debt Rating is issued by
each of the foregoing rating agencies, then the higher of such Debt
Ratings shall apply (with the Debt Rating for Pricing Level 1 being the
highest and the Debt Rating for Pricing Level 5 being the lowest), unless
there is a split in Debt Ratings of more than one level, in which case the
Pricing Level that is one level higher than the Pricing Level of the lower
Debt Rating shall apply.
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The Facility Fee shall be based on the Debt Rating of the lowest rated of the
Borrowers by S&P and ▇▇▇▇▇'▇. Initially, the Applicable Rate shall be determined
based upon Pricing Level 2. Thereafter, each change in the Applicable Rate
resulting from a publicly announced change in the Debt Rating shall be
effective, in the case of an upgrade, during the period commencing on the date
of the public announcement thereof and ending on the date immediately preceding
the effective date of the next such change and, in the case of a downgrade,
during the period commencing on the date of the public announcement thereof and
ending on the date immediately preceding the effective date of the next such
change.
"Applicant" means with respect to a particular letter of credit, the
Borrower or other Subsidiary of MetLife, applying for such Letter of Credit
pursuant to Section 2.04.
"Arrangers" mean Banc of America Securities LLC and Wachovia Capital
Markets, LLC, in their capacities as joint lead arrangers and book managers.
"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 according to
GAAP as of the date of such transfer.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all fees, expenses and disbursements
of any one law firm or other external counsel and, without duplication, in the
case of an Event of Default referred to in Section 8.01(h) or 8.01(i), the
allocated cost of internal legal services and all expenses and disbursements of
internal counsel.
"Attributable Indebtedness" 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.
"Audited Financial Statements" means the audited consolidated balance
sheet of MetLife and its Subsidiaries for the fiscal year ended December 31,
2003, and the related consolidated statements of income, stockholders' equity
and cash flows for such fiscal year of MetLife and its Subsidiaries, including
the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bank of America Fee Letter" has the meaning specified in the definition
of "Fee Letter."
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"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid Loans of
the same Type from each of the Lenders whose offer to make one or more Bid Loans
as part of such borrowing has been accepted under the auction bidding procedures
described in Section 2.03.
"Bid Loan" has the meaning specified in Section 2.03(a).
"Bid Loan Lender" means, in respect of any Bid Loan, the Lender making
such Bid Loan to the Borrower.
"Bid Request" means a written request for one or more Bid Loans
substantially in the form of Exhibit B-1.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing" means a Committed Borrowing or a Bid Borrowing, as the context
may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Cash Collateralize" has the meaning specified in Section 2.04(g).
"Change in 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 aggregate ordinary voting power represented by
the issued and outstanding capital stock of MetLife, or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
MetLife by Persons who were neither (i) nominated by the board of directors of
MetLife nor (ii) appointed by directors so nominated.
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"Closing Date" means the first date all the conditions precedent in
Section 5.01 are satisfied or waived in accordance with Section 10.01.
"Co-Applicant" means a Borrower acting as an applicant for an Applicant
with respect to a particular Letter of Credit.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrowers pursuant to Section 2.01 and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Committed
Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Committed Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Company" has the meaning specified in the introductory paragraph hereto.
"Competitive Bid" means a written offer by a Lender to make one or more
Bid Loans, substantially in the form of Exhibit B-2, duly completed and signed
by a Lender.
"Consolidated Net Worth" means the consolidated stockholders' equity,
determined in accordance with GAAP, of MetLife 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.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
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"Debt Rating" has the meaning specified in the definition of "Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservation, dissolution, bankruptcy, assignment for the
benefit of creditors, moratorium, rehabilitation, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United States
or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would, unless cured or waived, be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum, in all cases to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans or participations in L/C Obligations required to
be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 4.06.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"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 MetLife or any of its Material 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
6
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.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with MetLife, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived and other than an event
which 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 MetLife 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 MetLife 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 MetLife 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 MetLife 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.
"Eurodollar Base Rate" has the meaning specified in the definition of
"Eurodollar Rate."
"Eurodollar Bid Margin" means the margin above or below the Eurodollar
Base Rate to be added to or subtracted from the Eurodollar Base Rate, which
margin shall be expressed in multiples of 1/100th of one basis point.
"Eurodollar Margin Bid Loan" means a Bid Loan that bears interest at a
rate based upon the Eurodollar Base Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = --------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
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(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America (or, in the case of a Bid Loan, the applicable Bid Loan
Lender) and with a term equivalent to such Interest Period would be
offered by Bank of America's (or such Bid Loan Lender's) London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried
out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or a
Eurodollar Margin Bid Loan.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income, franchise or similar taxes, in
each case, imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction (or any political subdivision
8
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, or, in the case of a jurisdiction (or any
political subdivision thereof) that imposes taxes on the basis of management or
control or other concept or principle of residence, the jurisdiction (or any
political subdivision thereof) in which such recipient is so resident, (b) Taxes
imposed by reason of any present or former connection between such Person and
the jurisdiction (or any political subdivision thereof) imposing such Taxes,
other than as a result of the execution and delivery of this Agreement, the
making of any Loans hereunder or the performance of any action provided for
hereunder, (c) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction in which any Borrower is
located and (d) in the case of a Lender (other than an assignee pursuant to a
request by the Company under Section 10.15(b)), any withholding tax that (i) is
imposed on amounts payable to a Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from such Borrower with respect to such withholding tax
pursuant to Section 3.01(a) or (ii) is attributable to such Lender's failure to
comply with Section 3.01(e).
"Existing Bank of America Credit Agreement" has the meaning specified in
the definition of "Existing Credit Agreements."
"Existing Credit Agreements" mean (a) that certain Credit Agreement dated
as of April 23, 2002 among the Borrowers, Bank of America, as administrative
agent, and a syndicate of lenders (the "Existing Bank of America Credit
Agreement") and (b) that certain Credit Agreement dated as of April 25, 2003
among the Borrowers, BankOne, NA, as administrative agent, and a syndicate of
lenders.
"Existing Letters of Credit" means the letters of credit issued under the
Existing Bank of America Credit Agreement listed on Schedule 1.01 hereof.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as reasonably determined by the
Administrative Agent.
"Fee Letters" mean (a) the letter agreement, dated April 1, 2004, among
the Borrowers, Bank of America and Banc of America Securities LLC (the "Bank of
America Fee Letter") and (b) the letter agreement, dated March 29, 2004, among
the Borrowers, Wachovia Bank, N.A., and Wachovia Capital Markets, LLC.
9
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, assistant treasurer or controller of MetLife.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which any Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Funding" has the meaning specified in the introductory paragraph hereto.
"GAAP" means generally accepted accounting principles in the United
States.
"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.
"Granting Lender" has the meaning specified in Section 10.07(h).
"Guarantee" means, as to any Person, any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part). The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"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.
10
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business);
(d) indebtedness (excluding prepaid interest thereon) 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;
(e) all Surplus Relief Reinsurance ceded by such Person;
(f) capital leases of which such Person is the lessee; and
(g) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness 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 Indebtedness is expressly
made non-recourse to such Person. The amount of any capital lease as of any date
shall be deemed to be the amount of Attributable Indebtedness in respect thereof
as of such date.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 10.05.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of
any Eurodollar Rate
11
Committed Loan) converted to or continued as a Eurodollar Rate Loan and ending
on the date one, two, three or six months thereafter, as selected by the
Borrower in its Committed Loan Notice or Bid Request, as the case may be; and
(b) as to each Absolute Rate Loan, a period of not less than 7 days and not more
than 360 days as selected by the Borrower in its Bid Request; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Rate Loan, such Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and a Borrower (and, if applicable, any Subsidiary as an
Applicant) or in favor of the L/C Issuer and relating to any such Letter of
Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
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"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrowers
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the Maturity Date then in effect
(or, if such day is not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to $500,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan, or a Bid Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
and the Fee Letters.
"Loan Parties" means, collectively, the Borrowers.
"Margin Stock" means "margin stock" within the meaning of Regulations U
and X.
13
"Material Adverse Change" means any event, development or circumstance
that has had or could reasonably be expected to have a material adverse effect
on (a) the business, assets, property, condition (financial or otherwise) or
prospects of MetLife and its Subsidiaries taken as a whole, or (b) the validity
or enforceability of this Agreement or the rights and remedies of the
Administrative Agent and the Lenders hereunder.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Swap Contracts, of MetLife or any of its
Material Subsidiaries in an aggregate principal amount exceeding $300,000,000
(or its equivalent in any other currency). For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of MetLife or any of its
Material Subsidiaries in respect of any Swap Contract at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that MetLife
or such Material Subsidiary would be required to pay if such Swap Contract were
terminated at such time.
"Material Subsidiary" means, at any time, (i) Funding, (ii) the Company
and (iii) each Subsidiary of MetLife that as of such time meets the definition
of "significant subsidiary" contained as of the date hereof in Regulation S-X of
the SEC.
"Maturity Date" means April 23, 2009.
"MetLife" has the meaning specified in the introductory paragraph hereto.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance Commissioners and any
successor thereto.
"Note" means a promissory note made by a Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"Other Credit Agreement" means the 364-Day Credit Agreement among the
Borrowers, certain lenders, Wachovia Capital Markets, LLC, as syndication agent
and Bank of America, N.A., as administrative agent.
14
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Outstanding Amount" means (i) with respect to Committed Loans and Bid
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Committed Loans
and Bid Loans, as the case may be, occurring on such date; and (ii) with respect
to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such
date, including such changes as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) 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;
and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of any Borrower;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of
15
ERISA, and in respect of which MetLife or any ERISA Affiliate is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, then the Pro Rata Share of each Lender shall be
determined based on the Pro Rata Share of such Lender immediately prior to such
termination and after giving effect to any subsequent assignments made pursuant
to the terms hereof. The initial Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Register" has the meaning specified in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to a Bid Loan, a Bid Request and (c) with respect to an L/C Credit
Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, Lenders holding in the aggregate
more than 50% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations being
deemed "held" by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"SAP" means the accounting procedures and practices prescribed or
permitted by the Applicable Insurance Regulatory Authority or the NAIC.
16
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Transactions" means (a) securities lending arrangements, and
(b) repurchase and reverse repurchase arrangements with respect to securities
and financial instruments.
"Separate Accounts Assets" means, as at any date, the "Separate Accounts
assets" of the Company, determined in accordance with SAP, reported as such in
the Statutory Statements of the Company.
"SPC" has the meaning specified in Section 10.07(h).
"Statutory Statement" means a statement of the condition and affairs of
the Company, prepared in accordance with SAP, and filed with the Applicable
Insurance Regulatory Authority.
"Structured Transaction Liens" means Liens granted by the Company 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 the Company (the "SPV") in which the Company 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 the Company 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).
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
any Borrower.
"Support Agreement" means the Support Agreement dated as of November 30,
1984 between the Company and Funding, as amended and restated effective as of
that date on July 2, 1985.
"Surplus Relief Reinsurance" means any transaction in which the Company or
any Subsidiary of the Company cedes business under a reinsurance agreement that
would be considered a "financing-type" reinsurance agreement as determined by
the independent certified public accountants of the Company in accordance with
principles published by the Financial Accounting Standards Board or the Second
Edition of the AICPA Audit Guide for Stock Life Insurance Companies (pp. 91-92),
as the same may be revised from time to time.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options,
17
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.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority including penalties, interest and additions to tax.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement, the Borrowings when made, the issuance of Letters
of Credit when issued and the use of proceeds thereof.
"Type" means (a) with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan, and (b) with respect to a Bid Loan, its
character as an Absolute Rate Loan or a Eurodollar Margin Bid Loan.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.04(c)(i).
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
18
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP or SAP, as the case may be, applied on a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the Audited Financial Statements or Statutory
Statements, as of and for the year ended December 31, 2003, as applicable,
except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP or SAP would affect the
computation of any requirement set forth in any Loan Document, and either the
Borrowers or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrowers shall negotiate in good faith to amend such
requirement to preserve the original intent thereof in light of such change in
GAAP or SAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such requirement shall continue to be computed in
accordance with GAAP or SAP, as applicable, prior to such change therein and
(ii) the Borrowers shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such requirement made before and after giving effect to such
change in GAAP or SAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan
19
Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.07 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Issuer Documents
related thereto, whether or not such maximum face amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
Loan") to the Borrowers from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations shall not exceed such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, any Borrower or all Borrowers may borrow
under this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein. The obligations of the Borrowers to repay Loans and
L/C Obligations shall be several, not joint.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Committed Loans
shall be made upon a Borrower's irrevocable notice to the Administrative Agent,
which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans or of any conversion of Eurodollar Rate
Committed Loans to Base Rate Committed Loans, and (ii) on the requested date of
any Borrowing of Base Rate Committed Loans. Each telephonic notice by a Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Responsible Officer of a Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Committed Loans shall be in a principal
amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof.
Except as provided in Section 2.04(c), each Borrowing of or conversion to Base
Rate Committed Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) which Borrower is borrowing the
Committed Borrowing, (ii) whether a
20
Borrower is requesting a Committed Borrowing, a conversion of Committed Loans
from one Type to the other, or a continuation of Eurodollar Rate Committed
Loans, (iii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iv) the principal amount of
Committed Loans to be borrowed, converted or continued, (v) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be
converted, and (vi) if applicable, the duration of the Interest Period with
respect thereto. If a Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if a Borrower fails to give a timely notice requesting
a conversion or continuation, then the applicable Committed Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Committed Loans. If a
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Committed Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Pro Rata Share of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the applicable Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. As promptly as practicable, upon satisfaction
of the applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall
make all funds so received available to the applicable Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the
applicable Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the applicable Borrower; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing is given by a Borrower,
there are L/C Borrowings of such Borrower outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to such Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurodollar Rate Committed
Loan may be continued or converted only on the last day of an Interest Period
for such Eurodollar Rate Committed Loan. During the existence of a Default, no
Loans may be requested as, converted to or continued as Eurodollar Rate
Committed Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the applicable
Borrower and the Lenders of the interest rate applicable to any Interest Period
for Eurodollar Rate Committed Loans upon determination of such interest rate.
The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrowers and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
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(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans of the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 BID LOANS.
(a) General. Subject to the terms and conditions set forth herein, each
Lender agrees that any Borrower or all Borrowers may from time to time request
the Lenders to submit offers to make loans (each such loan, a "Bid Loan") to any
Borrower or all Borrowers prior to the Maturity Date pursuant to this Section
2.03; provided, however, that after giving effect to any Bid Borrowing, the
Total Outstandings shall not exceed the Aggregate Commitments. There shall not
be more than ten different Interest Periods in effect with respect to Bid Loans
at any time.
(b) Requesting Competitive Bids. Any Borrower may request the submission
of Competitive Bids by delivering a Bid Request to the Administrative Agent not
later than 12:00 noon (i) one Business Day prior to the requested date of any
Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) four Business
Days prior to the requested date of any Bid Borrowing that is to consist of
Eurodollar Margin Bid Loans. Each Bid Request shall specify (i) which Borrower
is delivering the Bid Request, (ii) the requested date of the Bid Borrowing
(which shall be a Business Day), (iii) the aggregate principal amount of Bid
Loans requested (which must be $10,000,000 or a whole multiple of $1,000,000 in
excess thereof), (iv) the Type of Bid Loans requested, and (v) the duration of
the Interest Period with respect thereto, and shall be signed by a Responsible
Officer of the applicable Borrower. No Bid Request shall contain a request for
(i) more than one Type of Bid Loan or (ii) Bid Loans having more than three
different Interest Periods. Unless the Administrative Agent otherwise agrees in
its sole and absolute discretion, no Borrower may submit a Bid Request if any
Borrower has submitted another Bid Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Lender of
each Bid Request received by it from any Borrower and the contents of such
Bid Request.
(ii) Each Lender may (but shall have no obligation to) submit a
Competitive Bid containing an offer to make one or more Bid Loans in
response to such Bid Request. Such Competitive Bid must be delivered to
the Administrative Agent not later than 10:30 a.m. (A) on the requested
date of any Bid Borrowing that is to consist of Absolute Rate Loans, and
(B) three Business Days prior to the requested date of any Bid Borrowing
that is to consist of Eurodollar Margin Bid Loans; provided, however, that
any Competitive Bid submitted by Bank of America in its capacity as a
Lender in response to any Bid Request must be submitted to the
Administrative Agent not later than 10:15 a.m. on the date on which
Competitive Bids are required to be delivered by the other Lenders in
response to such Bid Request. Each Competitive Bid shall specify (A) the
proposed date of the Bid Borrowing; (B) the principal amount of each Bid
Loan for which such Competitive Bid is being made, which principal amount
(x) may be equal to, greater than or less than the Commitment of the
bidding Lender, (y) must be $5,000,000 or a whole
22
multiple of $1,000,000 in excess thereof, and (z) may not exceed the
principal amount of Bid Loans for which Competitive Bids were requested;
(C) if the proposed Bid Borrowing is to consist of Absolute Rate Bid
Loans, the Absolute Rate offered for each such Bid Loan and the Interest
Period applicable thereto; (D) if the proposed Bid Borrowing is to consist
of Eurodollar Margin Bid Loans, the Eurodollar Bid Margin with respect to
each such Eurodollar Margin Bid Loan and the Interest Period applicable
thereto; and (E) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is received
after the applicable time specified in clause (ii) above, (B) is not
substantially in the form of a Competitive Bid as specified herein, (C)
contains qualifying, conditional or similar language, (D) proposes terms
other than or in addition to those set forth in the applicable Bid
Request, or (E) is otherwise not responsive to such Bid Request. Any
Lender may correct a Competitive Bid containing a manifest error by
submitting a corrected Competitive Bid (identified as such) not later than
the applicable time required for submission of Competitive Bids. Any such
submission of a corrected Competitive Bid shall constitute a revocation of
the Competitive Bid that contained the manifest error. The Administrative
Agent may, but shall not be required to, notify any Lender of any manifest
error it detects in such Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03 and 5.02
and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Notice to Borrower of Competitive Bids. Not later than 11:00 a.m.
(i) on the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, or (ii) three Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurodollar Margin Bid Loans, the Administrative
Agent shall notify the Borrower of the identity of each Lender that has
submitted a Competitive Bid that complies with Section 2.03(c) and of the terms
of the offers contained in each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 11:30 a.m. (i) on the
requested date of any Bid Borrowing that is to consist of Absolute Rate Loans,
and (ii) three Business Days prior to the requested date of any Bid Borrowing
that is to consist of Eurodollar Margin Bid Loans, the applicable Borrower shall
notify the Administrative Agent of its acceptance or rejection of the offers
notified to it pursuant to Section 2.03(d). The applicable Borrower shall be
under no obligation to accept any Competitive Bid and may choose to reject all
Competitive Bids. In the case of acceptance, such notice shall specify the
aggregate principal amount of Competitive Bids for each Interest Period that is
accepted. The applicable Borrower may accept any Competitive Bid in whole or in
part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Bid Request;
(ii) the principal amount of each Bid Loan must be $5,000,000 or a
whole multiple of $1,000,000 in excess thereof;
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(iii) the acceptance of offers may be made only on the basis of
ascending Absolute Rates or Eurodollar Bid Margins within each Interest
Period; and
(iv) the applicable Borrower may not accept any offer that is
described in Section 2.03(c)(iii) or that otherwise fails to comply with
the requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have submitted
Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin, as the case
may be, for the same Interest Period, and the result of accepting all of such
Competitive Bids in whole (together with any other Competitive Bids at lower
Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted for such
Interest Period in conformity with the requirements of Section 2.03(e)(iii))
would be to cause the aggregate outstanding principal amount of the applicable
Bid Borrowing to exceed the amount specified therefor in the related Bid
Request, then, unless otherwise agreed by the applicable Borrower, the
Administrative Agent and such Lenders, such Competitive Bids shall be accepted
as nearly as possible in proportion to the amount offered by each such Lender in
respect of such Interest Period, with such accepted amounts being rounded to the
nearest whole multiple of $1,000,000.
(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Bid Loan or Bid Loans to be made by it on
the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof
that is not accepted by the applicable Borrower by the applicable time specified
in Section 2.03(e) shall be deemed rejected.
(h) Notice of Eurodollar Base Rate. If any Bid Borrowing is to consist
of Eurodollar Margin Bid Loans, the Administrative Agent shall determine the
Eurodollar Base Rate for the relevant Interest Period, and promptly after making
such determination, shall notify the applicable Borrower and the Lenders that
will be participating in such Bid Borrowing of such Eurodollar Base Rate.
(i) Funding of Bid Loans. Each Lender that has received notice pursuant
to Section 2.03(g) that all or a portion of its Competitive Bid has been
accepted by the applicable Borrower shall make the amount of its Bid Loan(s)
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 12:00 (noon) on the date of the
requested Bid Borrowing. Upon satisfaction of the applicable conditions set
forth in Section 5.02, the Administrative Agent shall make all funds so received
available to the applicable Borrower in like funds as received by the
Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction pursuant
to this Section 2.03, the Administrative Agent shall notify each Lender that
submitted a Competitive Bid in such auction of the ranges of bids submitted
(without the bidder's name) and accepted for each Bid Loan and the aggregate
amount of each Bid Borrowing.
2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
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(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.04, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of any
Borrower or its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account
of any Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Outstandings shall not exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations shall not exceed such Lender's
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall
not exceed the Letter of Credit Sublimit. Each request by a Borrower for
the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by such Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrowers' ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrowers may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or
25
expense which was not applicable on the Closing Date and which the
L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate any
Laws;
(C) after the issuance of such Letter of Credit, more than
thirty Letters of Credit would be outstanding unless the Borrowers
and the Required Lenders otherwise agree;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(F) a default of any Lender's obligations to fund under
Section 2.04(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrowers or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of a Borrower, and, if a Subsidiary is an
Applicant, such Subsidiary delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
applicable Borrower and, if a Subsidiary is an Applicant, such Subsidiary.
Such Letter of Credit Application must be received by the L/C Issuer and
the Administrative Agent not later than 11:00 a.m. at least five Business
Days prior to the proposed issuance date or date of amendment (or such
shorter time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion), as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) who is the Applicant, and if the Applicant is not a
Borrower, who is the Co-Applicant; (B) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (C) the amount
thereof; (D) the expiry date thereof; (E) the name and address of the
beneficiary thereof; (F) the documents to be presented by such beneficiary
in case of any drawing thereunder; (G) the full text of any certificate to
be presented by such beneficiary in case
26
of any drawing thereunder; and (H) such other matters as the L/C Issuer
may reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (w) the Letter
of Credit to be amended; (x) the proposed date of amendment thereof (which
shall be a Business Day); (y) the nature of the proposed amendment; and
(z) such other matters as the L/C Issuer may reasonably require.
Additionally, the Applicant shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has received a copy of such
Letter of Credit Application from the Applicant and, if applicable, the
Co-Applicant and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, at
least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article V shall not then be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the applicable
Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Pro Rata Share times the amount of such
Letter of Credit.
(iii) If an Applicant so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Applicant (or, if applicable, the Co-Applicant) shall not be required
to make a specific request to the L/C Issuer for any such extension. Once
an Auto-Extension Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however, that
the L/C Issuer shall not permit any such extension if (A) the L/C Issuer
has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised
form (as extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the
day that is five Business Days before the Non-Extension Notice
27
Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent,
any Lender or any Loan Party that one or more of the applicable conditions
specified in Section 5.02 is not then satisfied, and in each such case
directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
applicable Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the applicable Borrower and the Administrative Agent thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit (each such date, an "Honor Date"), the applicable
Borrower shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing. If the applicable
Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and
the amount of such Lender's Pro Rata Share thereof. In such event, the
applicable Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 5.02 (other
than the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice. Each deemed Committed
Borrowing made pursuant to this Section 2.04(c)(i) shall be deemed to be a
reimbursement of each related drawing under a Letter of Credit.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.04(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject
to the provisions of Section 2.04(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the
applicable Borrower in such amount. The Administrative Agent shall remit
the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any other
reason, the applicable Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and
28
payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Lender's payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.04(c)(ii)
shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.04.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.04(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Pro Rata Share of such amount shall be solely for the account of
the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, any Borrower, any other Applicant
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that
each Lender's obligation to make Committed Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 5.02 (other than
delivery by the Borrower of a Committed Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the
applicable Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.04(c)
by the time specified in Section 2.04(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect. A certificate of the L/C
Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.04(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the applicable Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative Agent),
the Administrative Agent will distribute to such Lender its Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time
29
during which such Lender's L/C Advance was outstanding) in the same funds
as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.04(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the applicable Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that such Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment made by the L/C Issuer under such Letter of Credit
to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, such
Borrower or any Subsidiary.
Each Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto requested by the Borrowers that is delivered to it and,
in the event of any claim of noncompliance with such Borrower's instructions or
other irregularity, such Borrower will notify the L/C Issuer as promptly as
practicable. No Letter of Credit will be amended without written approval of the
Borrowers and the L/C Issuer. Such Borrower shall be
30
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. Each
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude such Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.04(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
applicable Borrower may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to such Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by such
Borrower which such Borrower proves were caused primarily by the L/C Issuer's
willful misconduct or gross negligence or the L/C Issuer's willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer 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, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit for any reason
remains outstanding and partially or wholly undrawn, the applicable Borrower
shall immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). Sections 2.05 and 8.02(c) set forth certain additional requirements to
deliver Cash Collateral hereunder. For purposes of this Section 2.04, Section
2.06 and Section 8.02(c), "Cash Collateralize" means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C
31
Issuer (which documents are hereby consented to by the Lenders). Derivatives of
such term have corresponding meanings. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing delivered by such Borrower as Cash Collateral.
Cash Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
Issuer and the applicable Borrower when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), the rules of the
ISP shall apply to each.
(i) Letter of Credit Fees. Each Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee (the "Letter of Credit Fee") for each Letter of Credit
equal to the Applicable Rate times the daily maximum amount available to be
drawn under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit). Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the last Business
Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Lenders, while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. Each Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit with respect to which it is
the Applicant or the Co-Applicant in the amount specified in the Bank of America
Fee Letter, payable on the actual daily maximum amount available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit). Such fronting fee shall be computed on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. In addition, each
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower, which is
the Co-Applicant with respect to such Letter of Credit, shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under such Letter of
Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit
for the
32
account of its Subsidiaries inures to the benefit of such Borrower, and that
such Borrower's business derives substantial benefits from the businesses of
such Subsidiaries.
2.05 PREPAYMENTS.
(a) Any Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Committed Loans and (B) on the date
of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar
Rate Committed Loans shall be in a principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Committed Loans shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by any Borrower, such Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Committed Loans of the Lenders in accordance with their
respective Pro Rata Shares.
(b) No Bid Loan may be prepaid without the prior consent of the
applicable Bid Loan Lender.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrowers shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that no Borrower shall be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after
the prepayment in full of the Committed Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.
(d) Upon the occurrence of a Change in Control, each Borrower agrees
that if requested by the Administrative Agent (acting at the request of the
Required Lenders) such Borrower will promptly prepay its Loans, together with
accrued interest and will promptly Cash Collateralize its L/C Obligations;
provided that no prepayment of any Bid Loan shall be made without the prior
consent of the Lender thereof.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrowers may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments and this
Agreement, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by the Administrative Agent
not later than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Borrowers shall not terminate or reduce the Aggregate Commitments if, after
giving effect
33
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit exceeds
the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly
notify the Lenders of any such notice of termination or reduction of the
Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Pro Rata Share. All
fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.
2.07 REPAYMENT OF LOANS.
(a) Each Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of its Committed Loans outstanding on such date.
(b) Each Borrower shall repay each of its Bid Loans on the last day of
the Interest Period in respect thereof.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate; and (iii) each Bid Loan shall bear interest on
the outstanding principal amount thereof for the Interest Period therefor at a
rate per annum equal to the Eurodollar Base Rate for such Interest Period plus
(or minus) the Eurodollar Bid Margin, or at the Absolute Rate for such Interest
Period, as the case may be.
(b) (i) If any amount of principal of any Loan is not paid when due
without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by
any Borrower under any Loan Document is not paid when due (after any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, each Borrower shall pay interest on the principal amount
of all its outstanding Obligations hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
34
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.04:
(a) Facility Fee. The Borrowers, jointly and severally, agree to pay to
the Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share, a facility fee equal to the Applicable Rate times the actual
daily amount of the Aggregate Commitments (or, if the Aggregate Commitments have
terminated, on the Outstanding Amount of all Committed Loans and L/C
Obligations), regardless of usage. The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Committed Loans or
L/C Obligations remain outstanding), including at any time during which one or
more of the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date (and, if applicable, thereafter on demand). The
facility fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Utilization Fee. Each Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee equal to the Applicable Rate times its Total Outstandings on
each day that the Total Outstandings plus the "Total Outstandings" as defined in
the Other Credit Agreement exceed 50% of the actual daily amount of the
Aggregate Commitments plus the "Aggregate Commitments," as defined in the Other
Credit Agreement then in effect (or, if terminated, in effect immediately prior
to such termination). The utilization fee shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
Maturity Date. The utilization fee shall be calculated quarterly in arrears and
if there is any change in the Applicable Rate during any quarter, the daily
amount shall be computed and multiplied by the Applicable Rate for each period
during which such Applicable Rate was in effect. The utilization fee shall
accrue at all times, including at any time during which one or more of the
conditions in Article V is not met.
(c) Other Fees. (i) The Borrowers shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letters. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
35
(ii) Upfront Fees. The Borrowers shall pay to the Administrative Agent
for the benefit of the Lenders the upfront fees set forth in the Fee Letters in
the amounts and at the times so specified. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to each
Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of any Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, each Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
36
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by any Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by any Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:30 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:30 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) If any payment to be made by any Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) Unless any Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder (or, in the case of a Borrowing of Base Rate
Loan, prior to 12:30 p.m. on the date of such Borrowing), that such Borrower or
such Lender, as the case may be, will not make such payment, the Administrative
Agent may assume that such Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion of
such assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds at the Federal
Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to such Borrower to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per annum equal
to the Federal Funds Rate from time to time in effect. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute
such Lender's Committed Loan or Bid Loan, as the case may be, included in
the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon such Borrower, and
such Borrower shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to
37
the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the Administrative
Agent, any Lender or any Borrower may have against any other Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or any Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to any Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Committed Loans and
to fund participations in Letters of Credit are several and not joint. The
failure of any Lender to make any Committed Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan or
purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Committed Loans made by it, or
the participations in L/C Obligations held by it, any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Committed Loans made by them and/or such subparticipations in the
participations in L/C Obligations held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such Committed Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) 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, without
further interest thereon. Each Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 10.09) with respect to such participation as fully as if such Lender
were the direct creditor of such Borrower
38
in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by or on account of any obligation of each
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes not paid
pursuant to Section 3.01(a)(iii) to the relevant Governmental Authority in
accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent and each
Lender within thirty (30) days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of such Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest, additions to tax and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority; provided, that such Borrower shall not
be obligated to make a payment pursuant to this Section 3.01 in respect of
penalties, interest and additions to tax attributable to any Indemnified Taxes
or Other Taxes, if (i) such penalties, interest and additions to tax are
attributable to the failure of the Administrative Agent or such Lender, as the
case may be, to pay amounts paid to the Administrative Agent or such Lender by
such Borrower (for Indemnified Taxes or Other Taxes) to the relevant
Governmental Authority within thirty (30) days after receipt of such payment
from such Borrower or (ii) such penalties, interest and additions to tax are
attributable to the gross negligence or willful misconduct of the Administrative
Agent or such Lender, as the case may be. Within 180 days after the
Administrative Agent or such Lender learns of the imposition of Indemnified
Taxes or Other Taxes, such Person shall give notice to the relevant Borrower of
the payment by the Administrative Agent or such Lender, as the case may be, of
such Indemnified Taxes or Other Taxes, and of the assertion by any Governmental
Authority that such Indemnified Taxes or Other Taxes are due and payable, but
the failure to give such notice shall
39
not affect such Borrower's obligations hereunder to reimburse the Administrative
Agent and such Lender for such Indemnified Taxes or Other Taxes, except that
such Borrower shall not be liable for penalties, interest and other liabilities
accrued or incurred after such 180 day period until such time as it receives the
notice contemplated above, after which time it shall be liable for penalties,
interest and other liabilities accrued or incurred prior to or during such 180
day period and accrued or incurred after such receipt. Such Borrower shall not
be liable for any penalties, interest and other liabilities with respect to such
Indemnified Taxes or Other Taxes to the extent it has reimbursed the amount
thereof to the Administrative Agent or such Lender, as the case may be. A
certificate as to the amount of such payment or liability delivered to the
relevant Borrower by a Lender, or by the Administrative Agent on its own behalf
or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the relevant Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender, before it signs and delivers this Agreement if
listed on the signature pages hereof, and before it becomes a Lender in the case
of each other Foreign Lender, shall provide such Borrower and the Administrative
Agent either (i) two accurate, complete and signed copies of either (x) U.S.
Internal Revenue Service Form W-8ECI or any successor form, or (y) U.S. Internal
Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8IMY, or any
successor form, in each case, indicating that such Lender is on the date of
delivery thereof entitled to receive payments of interest hereunder free from,
or subject to a reduced rate of withholding of United States Federal income tax
or (ii) in the case of such a Lender that is entitled to claim exemption from
withholding of United States Federal income tax under Section 871(h) or Section
881(c) of the Code with respect to payments of "portfolio interest", (x) a
certificate to the effect that such Lender is (A) not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (B) not a "10 percent shareholder"
of any Borrower within the meaning of Section 881(c)(3)(B) of the Code and (C)
not a controlled foreign corporation related to any Borrower within the meaning
of Section 881(c)(3)(C) of the Code and (y) two accurate, complete and signed
copies of U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue
Service Form W-81MY, or any successor Form. To the extent permitted by
applicable law, from time to time thereafter, at the request of any Borrower,
each Foreign Lender shall deliver renewals or additional copies of such forms
(or successor forms) on or before the date that such form expires or becomes
obsolete. Upon the written request of a Borrower to the Administrative Agent and
any Lender which is not a Foreign Lender, such Lender shall provide such
Borrower and the Administrative Agent with two accurate, complete and signed
copies of the U.S. Internal Revenue Service Form W-9.
(f) The Administrative Agent may, without reduction, withhold any Taxes
required to be deducted and withheld from any payment under any of the Loan
Documents with respect to which the Borrowers are not required to pay additional
amounts under this Section 3.01.
(g) If the U.S. Internal Revenue Service or any other Governmental
Authority asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for
40
the account of any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the Administrative
Agent of a change in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this paragraph (g), together
with all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the Lenders under
this paragraph (g) shall survive the payment of the Loans and termination of
this Agreement.
(h) If the Administrative Agent or any Lender determines, in its good
faith judgment, that it has actually received or realized any refund of tax or
any reduction of its tax liabilities or otherwise recovered any amount in
connection with any deduction or withholding or payment of any additional amount
by any Borrower pursuant to Section 3.04 or this Section 3.01, such Person shall
reimburse such Borrower in an amount equal to the net benefit, after tax, and
net of all expenses incurred by such Person in connection with such refund,
reduction or recovery; provided, that nothing in this paragraph (h) shall
require any Person to make available its tax returns (or any other information
relating to its taxes which it deems to be confidential). Each Borrower shall
return such amount to the applicable Person in the event that such Person is
required to repay such refund of tax or is not entitled to such reduction of, or
credit against, its tax liabilities. If the Administrative Agent or any Lender
shall become aware that it is entitled to receive a refund or direct credit in
respect of Indemnified Taxes or Other Taxes as to which it has been indemnified
by any Borrower or with respect to which any Borrower has paid additional
amounts, it shall promptly notify such Borrower of the availability of such
refund or direct credit and shall, within 30 days after receipt of a request for
such by such Borrower (whether as a result of notification that it has made of
such to such Borrower or otherwise), make a claim to such Governmental Authority
for such refund or direct credit and contest such Indemnified Taxes, Other Taxes
or liabilities if (i) such Borrower has agreed in writing to pay all of such
Lender's or Administrative Agent's reasonable costs and expenses relating to
such claim or contest, (ii) such Lender or the Administrative Agent determines,
in its good faith judgment, that it would not be materially disadvantaged or
prejudiced as a result of such claim or contest (it being understood that the
mere existence of fees, charges, costs or expenses that such Borrower has
offered to and agreed to pay on behalf of such Lender or the Administrative
Agent shall not be deemed to be materially disadvantageous to such person) and
(iii) such Borrower furnishes, upon request of such Lender or the Administrative
Agent, an opinion of reputable tax counsel (such opinion and such counsel to be
acceptable to such Lender or the Administrative Agent) to the effect that such
Indemnified Taxes or Other Taxes were wrongly or illegally imposed.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the applicable
Borrower through the Administrative Agent, any obligation of such Lender to make
or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Committed Loans shall be suspended until such Lender notifies
the Administrative Agent and
41
such Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrowers shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all its Eurodollar Rate Loans of such Lender to Base Rate Loans, either
on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the applicable Borrower shall also pay
accrued interest on the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need for
such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason adequate and reasonable means do not exist for determining the
Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Committed Loan, or that the Eurodollar Base Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate
Committed Loan does not adequately and fairly reflect the cost to such Lenders
of funding such Loan, the Administrative Agent will promptly so notify the
Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon receipt
of such notice, any Borrower may revoke any pending request by it for a
Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans
or, failing that, will be deemed to have converted such request into a request
for a Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation by any Governmental Authority of any Law,
or such Lender's compliance with any request, guideline or directive of any
Governmental Authority made or issued after the date hereof, there shall be any
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized,
in which its principal office is located or has its Lending Office (or in the
case of a jurisdiction (or any political subdivision thereof) that imposes taxes
on the basis of management or control or other concept or principal of
residence, the jurisdiction (or any political subdivision thereof) in which such
Lender is so resident), and (iii) reserve requirements utilized, as to
Eurodollar Rate Committed Loans, in the determination of the Eurodollar Rate),
then from time to time upon demand of such Lender (with a copy of such demand to
the Administrative Agent), the applicable Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.
42
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation by any
Governmental Authority thereof, or compliance by such Lender (or its Lending
Office) with any request, guideline or directive of any Governmental Authority
made or issued after the date hereof, has the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence of such Lender's obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), the Borrowers shall
jointly and severally pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, each Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) except as a result of circumstances set forth in Section 3.02, any
continuation, conversion, payment or prepayment of any Loan to it other than a
Base Rate Loan on a day other than the last day of the Interest Period for such
Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any failure by such Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by such
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by such
Borrower pursuant to Section 10.15;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
For purposes of calculating amounts payable by any Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Committed Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Committed Loan was in
fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the basis for such claim
and a calculation of the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrower may replace such Lender in accordance with Section 10.15.
43
3.07 SURVIVAL. All of the Borrowers' obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders, as to itself and its
Subsidiaries, as applicable, that:
4.01 ORGANIZATION; POWERS. MetLife and each of its Material Subsidiaries
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, could 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.
4.02 AUTHORIZATION; ENFORCEABILITY. The Transactions are within each
Borrower's corporate powers and have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by each
Borrower and constitutes a legal, valid and binding obligation of each Borrower,
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. The Support Agreement has been
duly executed and delivered by and constitutes a legal, valid and binding
obligation of the Company and Funding, 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.
4.03 GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a) do 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, (b) will not violate any applicable law or
regulation or the charter, by laws or other organizational documents of any
Borrower or any order of any Governmental Authority, and (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any Borrower or its assets, or give rise to a right thereunder to require
any payment to be made by any Borrower.
4.04 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) MetLife 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, 2003, 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
MetLife and its Consolidated Subsidiaries, as of the date thereof and for such
fiscal year, in accordance with GAAP.
(b) The Company has heretofore furnished to each of the Lenders the
annual Statutory Statement of the Company as at and for the year ended December
31, 2003, as filed with the Applicable Insurance Regulatory Authority. Such
Statutory Statement presents fairly,
44
in all material respects, the financial position and results of operations of
the Company , as of the date thereof and for such year, in accordance with SAP.
(c) Since December 31, 2003, there has been no material adverse change
in the business, assets, property or condition (financial or otherwise) of
MetLife and its Subsidiaries taken as a whole from that set forth in the
respective financial statements referred to in Sections 4.04(a) and 4.04(b).
4.05 PROPERTIES.
(a) MetLife and each of its Material 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,
could not reasonably be expected to result in a Material Adverse Change.
(b) MetLife and each of its Material 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 MetLife and its
Material Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Change.
4.06 LITIGATION AND ENVIRONMENTAL MATTERS.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of any
Borrower, threatened against or affecting MetLife or any of its Material
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, is reasonably likely,
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.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change, neither MetLife nor any of its
Material 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.
4.07 COMPLIANCE WITH LAWS AND AGREEMENTS. Each of MetLife and its
Material Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change. No Default has occurred and is
continuing.
4.08 INVESTMENT AND HOLDING COMPANY STATUS. Neither MetLife nor any of
its Material Subsidiaries (other than Funding) is an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940,
and Funding is an "investment
45
company" as defined in such Act that is exempt from the requirements of such
Act. Neither MetLife nor any of its Material Subsidiaries is a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
4.09 TAXES. Each of MetLife and its Subsidiaries has timely filed or
caused to be filed all tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings and
for which MetLife or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Change.
4.10 ERISA. Each Plan and, to the knowledge of MetLife, 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, could reasonably be expected to result in a Material Adverse Change.
4.11 DISCLOSURE. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrowers to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) 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 Borrowers represent only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
4.12 MARGIN STOCK. No part of the proceeds of any Loan hereunder will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the FRB, including Regulations U and X. Not more
than 25% of the value (as determined by any reasonable method) of the assets of
any of the Borrowers is represented by Margin Stock.
ARTICLE V.
CONDITIONS TO CREDIT EXTENSIONS
5.01 CLOSING DATE. The obligations of the Lenders to make Loans and of
the L/C Issuer to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.01):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received an opinion, addressed
to it and the Lenders and dated the Closing Date, of counsel to the Company,
substantially in the form of Exhibit E, and covering such other matters relating
to the Borrowers, this Agreement or the
46
Transactions as the Required Lenders shall reasonably request. The Borrowers
hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent, its counsel or any Lender may
reasonably request relating to the organization, existence and good standing of
each of the Borrowers, the authorization of the Transactions and any other legal
matters relating to each of the Borrowers, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrowers hereunder.
(e) The Existing Credit Agreements shall have been terminated, all Loans
thereunder shall have been repaid in full and all Letters of Credit issued under
the Existing Bank of America Credit Agreement shall have been cancelled or shall
constitute Existing Letters of Credit hereunder.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Closing Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.01) at or prior to 3:00 p.m., New York City time, on
April 23, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
5.02 EACH CREDIT EVENT. The obligation of each Lender to make a Loan on
the occasion of any Borrowing or of the L/C Issuer to make any L/C Credit
Extension is subject to the satisfaction of the following conditions:
(a) The representations and warranties of each of the Borrowers set
forth in this Agreement (other than, after the Closing Date, in Section 4.04(c)
and in Section 4.06) shall be true and correct on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such Borrowing
or L/C Credit Extension, no Default shall have occurred and be continuing.
(c) At the time of and immediately after giving effect to such Borrowing
or L/C Credit Extension, no default or event or condition which constitutes a
default or which upon notice, lapse of time or both would, unless cured or
waived, become a default shall have occurred and be continuing under the Support
Agreement.
(d) The applicable Borrower is authorized to perform its obligations in
respect of the proposed Borrowing or L/C Credit Extension.
Each Borrowing or L/C Credit Extension shall be deemed to constitute a
representation and warranty by each Borrower on the date thereof as to the
matters specified in paragraphs (a), (b) and (c) of this Section.
47
ARTICLE VI.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full, each Borrower covenants and agrees with the Lenders that:
6.01 FINANCIAL STATEMENTS AND OTHER INFORMATION. MetLife will furnish to
the Administrative Agent and each Lender:
(a) (i) as soon as available, but not later than 120 days after the end
of each fiscal year of MetLife, copies of MetLife's annual report on Form 10-K
as filed with the SEC for such fiscal year; and (ii) as soon as available, but
not later than 45 days after the end of each of the first three fiscal quarters
of each fiscal year of MetLife, copies of MetLife's quarterly report on Form
10-Q as filed with the SEC for such fiscal quarter, in each case certified by an
appropriate Financial Officer as being the complete and correct copies of the
statements on such forms furnished by MetLife to the SEC;
(b) concurrently with any delivery of financial statements under clause
(a) above or (except as to clause (ii) of this paragraph (b)) clause (c) or (d)
below, a certificate of a Financial Officer of MetLife (i) 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, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 7.04 and 7.05 and (iii) 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;
(c) within five days after filing with the Applicable Insurance
Regulatory Authority and in any event within 60 days after the end of each year,
the annual Statutory Statement of the Company for such year, certified by one of
its Financial Officers as presenting fairly in all material respects the
financial position of the Company for such year in accordance with SAP;
(d) within five days after filing with the Applicable Insurance
Regulatory Authority and in any event within 60 days after the end of each of
the first three quarterly periods of each year, the quarterly Statutory
Statement of the Company for such period, certified by one of its Financial
Officers as presenting fairly in all material respects the financial position of
the Company for such period in accordance with SAP;
(e) within five days after any change in a Debt Rating for a Borrower,
notice of such change; and
(f) within ten days after knowledge of the occurrence of any ERISA
Event, a description of such ERISA Event; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of MetLife or
any of its Material
48
Subsidiaries, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
Documents required to be delivered pursuant to Section 4.04 or Section
6.01 (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrowers post such
documents, or provides a link thereto on the Borrowers' website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which such documents
are posted on the Borrowers' behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrowers shall deliver paper copies of such
documents to the Administrative Agent until a written request to cease
delivering paper copies is given by the Administrative Agent and (ii) the
Borrowers shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrowers shall be required to provide paper copies of the certificate
required by Section 6.01(b) to the Administrative Agent. Except for such
certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrowers with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
6.02 NOTICES OF DEFAULTS. The Borrowers will furnish to the
Administrative 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 MetLife setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
6.03 EXISTENCE; CONDUCT OF BUSINESS. MetLife will, and will cause each of
its Material Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation, dissolution or other transaction permitted under
Section 7.02.
6.04 PAYMENT OF OBLIGATIONS. MetLife will, and will cause each of its
Material Subsidiaries to, pay its obligations, including Tax liabilities, that,
if not paid, could result in a Material Adverse Change before the same shall
become delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) MetLife or such
Material Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Change.
6.05 MAINTENANCE OF PROPERTIES; INSURANCE. MetLife will, and will cause
each of its Material Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with
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financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations.
6.06 BOOKS AND RECORDS; INSPECTION RIGHTS. MetLife will, and will cause
each of its Material 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 its business and activities. MetLife will, and will cause each of
its Material Subsidiaries to, permit any representative designated by the
Administrative Agent (and, if a Default shall have occurred and be continuing,
any representatives designated by any Lender), upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
6.07 COMPLIANCE WITH LAWS. MetLife will, and will cause each of its
Material Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change.
6.08 USE OF PROCEEDS. The proceeds of the Loans will be used only for
general corporate purposes (including the back-up of commercial paper) of
MetLife and its Subsidiaries in the ordinary course of business; provided that
no part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the FRB, including Regulations U and X; provided further that no part of the
proceeds of any Loan will be used, whether directly or indirectly, to acquire
the capital stock or business of any other Person without the consent of such
Person; and provided further that neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any such proceeds.
6.09 SUPPORT AGREEMENT. The Company and Funding will maintain the Support
Agreement in full force and effect, and comply with the provisions thereof, and
will not modify, supplement or waive any of its provisions without the prior
consent of the Administrative Agent (with the approval of the Required Lenders);
provided that any modification, supplement or waiver that reduces or impairs the
support provided to Funding shall require the approval of all Lenders.
ARTICLE VII.
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full,
each Borrower covenants and agrees with the Lenders that:
7.01 LIENS. None of the Borrowers will create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Permitted Encumbrances;
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(b) any Lien existing on any property or asset prior to the acquisition
thereof by such Borrower; 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 such Borrower, and (iii) such Lien
shall secure only those obligations which it secures on the date of such
acquisition;
(c) Liens on assets acquired, constructed or improved by such Borrower;
provided that (i) such Liens and the Indebtedness secured thereby are incurred
prior to or within 360 days after such acquisition or the completion of such
construction or improvement, (ii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such assets, and (iii)
such Liens shall not apply to any other property or assets of such Borrower;
(d) Liens on any property or assets of any Person existing at the time
such Person is merged or consolidated with or into such Borrower and not created
in contemplation of such event;
(e) Liens on any real property securing Indebtedness in respect of which
(i) the recourse of the holder of such Indebtedness (whether direct or indirect
and whether contingent or otherwise) under the instrument creating the Lien or
providing for the Indebtedness secured by the Lien is limited to such real
property directly securing such Indebtedness and (ii) such holder may not under
the instrument creating the Lien or providing for the Indebtedness secured by
the Lien collect by levy of execution or otherwise against assets or property of
such Borrower (other than such real property directly securing such
Indebtedness) if such Borrower fails to pay such Indebtedness when due and such
holder obtains a judgment with respect thereto, except for recourse obligations
that are customary in "non-recourse" real estate transactions;
(f) Liens arising out of Securities Transactions entered into in the
ordinary course of business and on ordinary business terms;
(g) Structured Transaction Liens;
(h) Liens arising out of Asset Securitizations;
(i) Liens on Separate Accounts Assets;
(j) Liens arising out of any real estate sale/leaseback transactions;
(k) Liens arising in connection with Swap Contracts;
(l) Liens on securities owned by such Borrower which are pledged to the
Federal Home Loan Bank Board, (the "FHLBB") to secure loans made by the FHLBB to
such Borrower in the ordinary course of business and on ordinary business terms;
(m) Liens not otherwise permitted by this Section 7.01 arising in the
ordinary course of the Borrowers' business that do not secure any Indebtedness;
provided that the obligations of the Borrowers secured by such Liens shall not
exceed $3,000,000,000 at any one time outstanding;
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(n) Liens not otherwise permitted by this Section 7.01; provided that
the aggregate principal amount of the Indebtedness secured by such Liens shall
not exceed $4,000,000,000 at any one time outstanding; and
(o) any extension, renewal or replacement of the foregoing; provided
that the Liens permitted hereunder shall not be spread to cover any additional
Indebtedness or assets (other than a substitution of like assets) unless such
additional Indebtedness or assets would have been permitted in connection with
the original creation, incurrence or assumption of such Lien.
7.02 FUNDAMENTAL CHANGES.
(a) No Borrower will 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 or (ii) between or among
MetLife and its direct and indirect wholly-owned Subsidiaries), or (in the case
of MetLife) all or any substantial part of the stock of Funding or the Company
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve; provided, however, that all or a substantial part of the stock of
Funding may be transferred so long as it remains directly or indirectly held by
MetLife; and provided further, that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (A)
any Subsidiary of a Borrower may merge into such Borrower in a transaction in
which such Borrower is the surviving corporation, (B) Funding may sell,
transfer, lease or otherwise dispose of its assets to MetLife or the Company,
including via liquidation, so long as MetLife or the Company expressly assumes
the obligations of Funding hereunder and under the promissory notes issued
hereunder, and (C) a Borrower may merge or consolidate with any other Person if
such Borrower is the surviving corporation.
(b) MetLife will not, and will not permit any of its Material
Subsidiaries to, engage to any material extent in any business other than (i)
businesses of the type conducted by MetLife or any of its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto or
(ii) businesses financial in nature.
7.03 TRANSACTIONS WITH AFFILIATES. MetLife will not, and will not permit
any of its Material 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 (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to MetLife or
such Material Subsidiary than could be obtained on an arm's length basis from
unrelated third parties, and (b) transactions between or among MetLife and its
direct or indirect Subsidiaries.
7.04 ADJUSTED STATUTORY SURPLUS. The Company will not permit its Adjusted
Statutory Surplus, calculated as of the last day of each fiscal quarter of the
Company, to be less than $7,750,000,000.
7.05 CONSOLIDATED NET WORTH. MetLife 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.
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ARTICLE VIII.
EVENTS OF DEFAULT
8.01 EVENTS OF DEFAULT. If any of the following events ("Events of
Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise or shall fail to reimburse any
drawing under any Letter of Credit when and as due;
(b) any Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five or more
Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of MetLife or any of its Material Subsidiaries in or in connection with this
Agreement or any amendment or modification hereof or waiver hereunder, or in any
report, certificate, financial statement or other document furnished pursuant to
or in connection with this Agreement or any amendment or modification hereof or
waiver hereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02, 6.03 (with respect to such
Borrower's existence), 6.08 or 6.09 or in Article VII;
(e) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the relevant Borrower (which notice will be given at the request of any
Lender);
(f) MetLife or any of its Material Subsidiaries shall fail to make
payments (whether of principal or interest and regardless of amount) on Material
Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in Material Indebtedness
becoming due prior to the scheduled maturity of such Material Indebtedness or
that enables or permits (with or without the giving of notice, the lapse of time
or both) the holder or holders of Material Indebtedness or any trustee or agent
on its or their behalf to cause Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of MetLife or any of its
53
Material Subsidiaries or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for MetLife or
any or its Material Subsidiaries or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) MetLife or any of its Material Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for MetLife or any or its Material Subsidiaries
or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(j) MetLife or any of its Material Subsidiaries shall become unable,
admit in writing or fail generally to pay its debts as they become due;
(k) 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 MetLife, any Material Subsidiary of MetLife 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
(l) 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 MetLife and its
Material Subsidiaries in an aggregate amount exceeding $200,000,000 in any year;
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, with notice to the Borrowers, take any or
all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that each Borrower Cash Collateralize its L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
54
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans to any Borrower and
any obligation of the L/C Issuer to make L/C Credit Extensions to the Borrowers
shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable, and the obligation of the Borrowers to Cash Collateralize the
L/C Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations of any Borrower shall be applied by the
Administrative Agent in the following order:
First, to payment of that portion of such Borrower's Obligations
constituting fees, indemnities, expenses and other amounts (including Attorney
Costs and amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of such Borrower's Obligations
constituting fees, indemnities and other amounts (other than principal and
interest) payable to the Lenders (including Attorney Costs and amounts payable
under Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;
Third, to payment of that portion of such Borrower's Obligations
constituting accrued and unpaid interest on the Loans and L/C Borrowings,
ratably among the Lenders in proportion to the respective amounts described in
this clause Third payable to them;
Fourth, to payment of that portion of such Borrower's Obligations
constituting unpaid principal of the Loans and L/C Borrowings, ratably among the
Lenders in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of such Borrower's L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to such Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or Participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article IX and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible to the Lenders for the
negligence or misconduct of any agent or attorney-in-fact selected by the
Administrative Agent in good faith after due inquiry.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or Participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection
56
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Loan Party or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender or Participant to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of any Loan Party or any Affiliate
thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 5.01, each Lender that has signed this Agreement 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 a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with Article VIII; provided, however, that unless and
until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
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9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrowers hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that (a) no Lender shall be liable for the payment to any Agent-Related Person
of any portion of such Indemnified Liabilities to the extent determined in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person's own gross negligence or willful
misconduct, provided, however, that no action taken in accordance with the
express directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section, and (b) no Lender
shall be liable for the payment of any portion of an Indemnified Liability
pursuant to this Section unless such Indemnified Liability was incurred by the
Administrative Agent in its capacity as such or by another Agent-Related Person
acting for the Administrative Agent in such capacity. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative 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, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrowers. The undertaking in this Section shall survive
termination of the Aggregate
58
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Loan Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the L/C Issuer hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
as Administrative Agent upon 30 days' notice to the Lenders and the Borrowers;
provided that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be consented to by the Borrowers at all times other than during the existence of
an Event of Default (which consent of the Borrowers shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrowers, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, L/C Issuer and
the respective terms "Administrative Agent," and "L/C Issuer" shall mean such
successor administrative agent, and Letter of Credit issuer and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring L/C Issuer's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring L/C Issuer or any other Lender, other than the obligation of
the successor L/C Issuer to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or to make
other arrangements satisfactory to the retiring L/C Issuer to effectively assume
the obligations of the retiring L/C Issuer with respect to such Letters of
Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Section 10.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
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9.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.04(i) and (j), 2.09 and 10.05)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.05.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
9.11 OTHER AGENTS; JOINT LEAD ARRANGERS AND BOOK MANAGERS. None of the
Lenders or other Persons identified on the facing page or signature pages of
this Agreement as a "syndication agent," "documentation agent," "arranger,"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by any
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrowers, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 5.01 without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender; or
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; (iii) Section 10.07(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; and (iv) each Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the
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Commitment of such Lender may not be increased or extended without the consent
of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed certified or
registered mail, faxed or delivered to the applicable address, facsimile number
or (subject to subsection (b) below) electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to the Borrowers, the Administrative Agent or the L/C
Issuer, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 or to such
other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other
parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers, the Administrative Agent and the L/C
Issuer.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or any
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
(c) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by
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a manually-signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
document or signature.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices) reasonably believed by them to be
genuine and to have been given by or on behalf of the Borrowers even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall jointly and severally indemnify each Agent-Related
Person and each Lender from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice reasonably believed by
them to be genuine and to have been given by or on behalf of the Borrowers. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.04 [INTENTIONALLY OMITTED].
10.05 COSTS, EXPENSES AND INDEMNIFICATION.
(a) Each Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Agent-Related Persons, including
reasonable Attorney Costs, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
(b) Each Borrower shall indemnify the Administrative Agent and each
Lender and the directors, officers, employees, agents, advisors and Affiliates
of any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the use
or proposed use of the proceeds of any Loan or any Letter of Credit, or (ii) any
actual or prospective claim,
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litigation, investigation or proceeding relating thereto, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto (the "Indemnified Liabilities"); provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrowers fail to pay any amount required to
be paid by them to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Pro Rata Share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall not
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan, any Letter of Credit or the use
of the proceeds thereof.
(e) No Indemnitee shall be liable for any damages arising from the use
by others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement.
(f) The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of any Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, rehabilitator,
conservator, custodian, liquidator, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.
10.07 SUCCESSORS AND ASSIGNS.
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(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrowers may not assign or otherwise transfer
any of their respective rights or obligations hereunder without the prior
written consent of each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section, (iii) by way of pledge or assignment of a security interest subject to
the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrowers otherwise consent (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights in respect of Bid Loans; (iii) any assignment of a Commitment
must be approved by the Administrative Agent, and the L/C Issuer unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); (iv) the
assignment shall contain a representation by the Eligible Assignee to the effect
that none of the consideration used to make the purchase of the Commitment and
Loans under the applicable Assignment and Assumption constitutes "plan assets"
as defined under ERISA and that the rights and interests of the Eligible
Assignee in and under the Loan Documents will not be "plan assets" under ERISA;
and (v) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500. Subject to acceptance and recording thereof by
the Administrative Agent pursuant to subsection (c) of this Section, from and
after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights
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and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04,
3.05 and 10.05 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, each Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers at any reasonable time and from time
to time upon reasonable prior notice. In addition, at any time that a request
for a consent for a material or other substantive change to the Loan Documents
is pending, any Lender wishing to consult with other Lenders in connection
therewith may request and receive from the Administrative Agent a copy of the
Register.
(d) Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or a Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations) owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative 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. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 10.01
that directly affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the
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participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrowers' prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrowers are notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 3.01 as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent and the L/C
Issuer, and (ii) unless an Event of Default has occurred and is
continuing, the Borrowers (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include any Borrower or any of the
Borrowers' Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrowers (an "SPC") the option to provide all or
any part of any Committed Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Committed Loan, the Granting Lender shall be obligated to make such
Committed Loan pursuant to the terms hereof or, if it fails to do so, to make
such payment to the Administrative Agent as is required under Section
2.12(c)(ii). Each party hereto hereby agrees that (i) neither the grant to any
SPC nor the exercise by any SPC of such option shall increase the costs or
expenses or otherwise increase or change the obligations of the Borrowers under
this Agreement (including its obligations under Section 3.04), (ii) no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
for which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Committed Loan by an SPC hereunder shall utilize the Commitment
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of the Granting Lender to the same extent, and as if, such Committed Loan were
made by such Granting Lender. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or any portion of its right to
receive payment with respect to any Committed Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such
SPC.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, upon 30 days' notice to the Borrowers
and the Lenders, resign as L/C Issuer. In the event of any such resignation as
L/C Issuer, the Borrowers shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no failure by the
Borrowers to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall retain
all the rights and obligations of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.04(c)).
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
any Borrower and its obligations, (g) with the consent of any Borrower or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than any Borrower. In the event that any Lender becomes legally compelled
to disclose any confidential Information pursuant to paragraph (c) of this
Section 10.08, such Lender shall, to the extent permitted by law, give
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prompt written notice of that fact to the Borrowers prior to the disclosure so
that the Borrowers may seek an appropriate remedy to prevent or limit such
disclosure and the Lenders shall cooperate reasonably (at the expense of the
Borrowers) with the Borrowers in seeking such remedy. For purposes of this
Section, "Information" means all information received from any Borrower or any
of its Subsidiaries relating to any Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Borrower or any Subsidiary, provided that, in the case of
information received from any Borrower or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrowers 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 by, and other indebtedness at any time owing by, such
Lender to or for the credit or the account of the respective Loan Parties
against any and all Obligations owing to such Lender hereunder or under any
other Loan Document, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the applicable Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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10.12 INTEGRATION. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.14 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 3.04, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
then such Lender shall, upon the request of such Borrower, use reasonable
efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 3.04 or 3.01, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. Each Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Under any circumstances set forth herein providing that the
Borrowers shall have the right to replace a Lender as a party to this Agreement,
the Borrowers may, upon notice to such Lender and the Administrative Agent,
replace such Lender by causing such Lender to
70
assign its Commitment (with the assignment fee to be paid by the Borrowers in
such instance) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrowers; provided, however, that if the
Borrowers elect to exercise such right with respect to any Lender pursuant to
Section 3.06(b), it shall be obligated to replace all Lenders that have made
similar requests for compensation pursuant to Section 3.01 or 3.04. Upon the
making of any such assignment, the Borrowers shall (x) pay in full any amounts
payable pursuant to Section 3.05 and (y) provide appropriate assurances and
indemnities (which may include letters of credit) to the L/C Issuer as it may
reasonably require with respect to any continuing obligation to fund
participation interests in any L/C Obligations then outstanding.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, THE
ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER, THE
ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. EACH BORROWER, THE ADMINISTRATIVE Agent AND EACH
LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS
71
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 USA PATRIOT ACT NOTICE. Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrowers, which information
includes the name and address of the Borrowers and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
METLIFE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
METLIFE FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief Executive
Officer
Five-Year Credit Agreement
S-1
BANK OF AMERICA, N.A., individually, as
Administrative Agent and as L/C Issuer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
Five-Year Credit Agreement
S-2
WACHOVIA CAPITAL MARKETS, LLC, as Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Vice President
Five-Year Credit Agreement
S-3
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Five-Year Credit Agreement
S-4
CITICORP USA
By: /s/ ▇▇▇▇▇ ▇. Dodge
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Managing Director
Five-Year Credit Agreement
S-5
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
S-6
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Pieza
Name: ▇▇▇▇▇▇▇▇ ▇. Pieza
Title: Associate
Five-Year Credit Agreement
S-7
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Five-Year Credit Agreement
S-8
HSBC BANK USA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Five-Year Credit Agreement
S-9
▇▇▇▇▇▇ BROTHERS BANK, FSB
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
S-10
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Five-Year Credit Agreement
S-11
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Five-Year Credit Agreement
S-12
UBS LOAN FINANCE LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Director, Banking Products Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Director, Banking Product
Services, US
Five-Year Credit Agreement
S-13
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Five-Year Credit Agreement
S-14
BNP PARIBAS
By: /s/ Laurent Vanderzyppe
Name: Laurent Vanderzyppe
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
S-15
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Five-Year Credit Agreement
S-16
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Associate Director
Five-Year Credit Agreement
S-17
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Second Vice President
Five-Year Credit Agreement
S-18
PNC BANK, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
S-20
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
S-21
US BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Five-Year Credit Agreement
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