EX-10.1



 





 

 





Exhibit 10.1




[Published CUSIP Number:                                         ]




AMENDED AND RESTATED FIVE-YEAR COMPETITIVE ADVANCE AND

REVOLVING CREDIT FACILITY AGREEMENT




Dated as of December 19, 2006




among




THE HARTFORD FINANCIAL SERVICES GROUP, INC.,




THE BORROWING SUBSIDIARIES FROM TIME TO TIME PARTY HERETO,




THE LENDERS NAMED HEREIN,




BANK OF AMERICA, N.A,

as Administrative Agent,




JPMORGAN CHASE BANK, N.A.

and

CITIBANK, N.A.,

as Syndication Agents




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Documentation Agent



 




BANC OF AMERICA SECURITIES LLC,

J.P. MORGAN SECURITIES INC. and

CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners




 

 











 



2




Table of Contents




	 	 	 	 	 	 	 
	 

	 	ARTICLE I	 	 	 	 
	 
	 

	 	Definitions	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Defined Terms
	 	 	1	 
	SECTION 1.02.

	 	Terms Generally
	 	 	21	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II	 	 	 	 
	 
	 

	 	The Credits	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Commitments
	 	 	21	 
	SECTION 2.02.

	 	Loans
	 	 	22	 
	SECTION 2.03.

	 	Competitive Bid Procedure
	 	 	23	 
	SECTION 2.04.

	 	Standby and Local Currency Borrowing Procedure
	 	 	26	 
	SECTION 2.05.

	 	Conversion and Continuation of Standby Loans
	 	 	26	 
	SECTION 2.06.

	 	Letters of Credit
	 	 	28	 
	SECTION 2.07.

	 	Fees
	 	 	36	 
	SECTION 2.08.

	 	Repayment of Loans; Evidence of Debt
	 	 	37	 
	SECTION 2.09.

	 	Interest on Loans
	 	 	38	 
	SECTION 2.10.

	 	Default Interest
	 	 	39	 
	SECTION 2.11.

	 	Alternate Rate of Interest
	 	 	39	 
	SECTION 2.12.

	 	Termination and Reduction of Commitments
	 	 	40	 
	SECTION 2.13.

	 	Prepayment
	 	 	40	 
	SECTION 2.14.

	 	Reserve Requirements; Change in Circumstances
	 	 	41	 
	SECTION 2.15.

	 	Change in Legality
	 	 	42	 
	SECTION 2.16.

	 	Indemnity
	 	 	43	 
	SECTION 2.17.

	 	Pro Rata Treatment
	 	 	44	 
	SECTION 2.18.

	 	Sharing of Setoffs
	 	 	44	 
	SECTION 2.19.

	 	Payments
	 	 	45	 
	SECTION 2.20.

	 	Taxes
	 	 	45	 
	SECTION 2.21.

	 	Duty to Mitigate; Assignment of Commitments Under Certain Circumstances
	 	 	48	 
	SECTION 2.22.

	 	Terms of Local Currency Facilities
	 	 	49	 
	SECTION 2.23.

	 	Currency Fluctuations, etc
	 	 	50	 
	SECTION 2.24.

	 	Increase in Total Commitment
	 	 	52	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III	 	 	 	 
	 
	 

	 	Representations and Warranties	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Organization; Powers
	 	 	54	 












 



3


	 	 	 	 	 	 	 
	SECTION 3.02.

	 	Authorization
	 	 	54	 
	SECTION 3.03.

	 	Enforceability
	 	 	55	 
	SECTION 3.04.

	 	Governmental Approvals
	 	 	55	 
	SECTION 3.05.

	 	Financial Statements
	 	 	55	 
	SECTION 3.06.

	 	Litigation; Compliance with Laws
	 	 	55	 
	SECTION 3.07.

	 	Federal Reserve Regulations
	 	 	56	 
	SECTION 3.08.

	 	Investment Company Act
	 	 	56	 
	SECTION 3.09.

	 	Use of Proceeds
	 	 	56	 
	SECTION 3.10.

	 	Full Disclosure; No Material Misstatements
	 	 	56	 
	SECTION 3.11.

	 	Taxes
	 	 	56	 
	SECTION 3.12.

	 	Employee Pension Benefit Plans
	 	 	56	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IV	 	 	 	 
	 
	 

	 	Conditions of Lending	 	 	 	 
	SECTION 4.01.

	 	All Credit Events
	 	 	57	 
	SECTION 4.02.

	 	Original Effective Date
	 	 	57	 
	SECTION 4.03.

	 	First Borrowing by Each Borrowing Subsidiary
	 	 	58	 
	SECTION 4.04.

	 	Restatement Effectiveness
	 	 	58	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE V	 	 	 	 
	 
	 

	 	Covenants	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Existence
	 	 	59	 
	SECTION 5.02.

	 	Business and Properties
	 	 	59	 
	SECTION 5.03.

	 	Financial Statements, Reports, etc
	 	 	60	 
	SECTION 5.04.

	 	Insurance
	 	 	61	 
	SECTION 5.05.

	 	Obligations and Taxes
	 	 	61	 
	SECTION 5.06.

	 	Notices
	 	 	62	 
	SECTION 5.07.

	 	Maintaining Records; Access to Properties and Inspections
	 	 	62	 
	SECTION 5.08.

	 	Employee Benefits
	 	 	62	 
	SECTION 5.09.

	 	Use of Proceeds
	 	 	62	 
	SECTION 5.10.

	 	Consolidations, Mergers, and Sales of Assets
	 	 	62	 
	SECTION 5.11.

	 	Limitations on Liens
	 	 	63	 
	SECTION 5.12.

	 	Limitations on Sale and Leaseback Transactions
	 	 	65	 
	SECTION 5.13.

	 	Consolidated Total Debt to Consolidated Total Capitalization
	 	 	65	 
	SECTION 5.14.

	 	Minimum Consolidated Statutory Surplus
	 	 	65	 
	SECTION 5.15.

	 	Limitation on Issuance of Consumer Notes
	 	 	65	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VI	 	 	 	 
	 
	 

	 	Events of Default	 	 	 	 












 



4


	 	 	 	 	 	 	 
	 

	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Guarantee	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	The Administrative Agent	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Appointment and Authority
	 	 	71	 
	SECTION 8.02.

	 	Rights as a Lender
	 	 	71	 
	SECTION 8.03.

	 	Exculpatory Provisions
	 	 	71	 
	SECTION 8.04.

	 	Reliance by Administrative Agent
	 	 	72	 
	SECTION 8.05.

	 	Delegation of Duties
	 	 	72	 
	SECTION 8.06.

	 	Resignation of Administrative Agent
	 	 	73	 
	SECTION 8.07.

	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	74	 
	SECTION 8.08.

	 	No Other Duties, Etc
	 	 	74	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Miscellaneous	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Notices
	 	 	74	 
	SECTION 9.02.

	 	Survival of Agreement
	 	 	75	 
	SECTION 9.03.

	 	Binding Effect
	 	 	75	 
	SECTION 9.04.

	 	Successors and Assigns
	 	 	75	 
	SECTION 9.05.

	 	Expenses; Indemnity
	 	 	78	 
	SECTION 9.06.

	 	APPLICABLE LAW
	 	 	79	 
	SECTION 9.07.

	 	Waivers; Amendment
	 	 	79	 
	SECTION 9.08.

	 	Entire Agreement
	 	 	79	 
	SECTION 9.09.

	 	Severability
	 	 	80	 
	SECTION 9.10.

	 	Counterparts
	 	 	80	 
	SECTION 9.11.

	 	Headings
	 	 	80	 
	SECTION 9.12.

	 	Right of Setoff
	 	 	80	 
	SECTION 9.13.

	 	Jurisdiction; Consent to Service of Process
	 	 	80	 
	SECTION 9.14.

	 	Waiver of Jury Trial
	 	 	81	 
	SECTION 9.15.

	 	Addition of Borrowing Subsidiaries
	 	 	81	 
	SECTION 9.16.

	 	Conversion of Currencies
	 	 	81	 
	SECTION 9.17.

	 	Confidentiality
	 	 	82	 
	SECTION 9.18.

	 	USA Patriot Act
	 	 	83	 












 



5


Exhibits and Schedules




	 	 	 
	Exhibit A-1

	 	Form of Competitive Bid Request
	Exhibit A-2

	 	Form of Notice of Competitive Bid Request
	Exhibit A-3

	 	Form of Competitive Bid
	Exhibit A-4

	 	Form of Competitive Bid Accept/Reject
	Exhibit A-5

	 	Form of Standby Borrowing Request
	Exhibit B

	 	Form of Assignment and Assumption
	Exhibit C

	 	Form of Opinion of Counsel for The Hartford Financial Services Group, Inc.
	Exhibit D

	 	Form of Borrowing Subsidiary Agreement
	Exhibit E

	 	Form of Local Currency Addendum
	Exhibit F

	 	Form of Secured Letter of Credit Agreement
	Schedule 1.01

	 	Insurance Subsidiaries
	Schedule 2.01

	 	Commitments
	Schedule 3.06

	 	Litigation and Compliance with Laws













 



 





     AMENDED AND RESTATED FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT (as it may be amended, supplemented or otherwise
modified, the “Agreement”) dated as of December 19, 2006, among THE
HARTFORD FINANCIAL SERVICES GROUP, INC., a Delaware corporation (the
“Company”); each Borrowing Subsidiary party hereto; the lenders listed in
Schedule 2.01 (together with their permitted assignees, the “Lenders”);
and BANK OF AMERICA, N.A., as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”).



          Reference is made to the Five-Year Competitive Advance and Revolving Credit Facility Agreement
dated as of September 7, 2005 (as first amended on September 7, 2006) among the Company, Hartford
Life Inc., a Delaware corporation and a subsidiary of the Company (“Hartford Life”), the Borrowing
Subsidiaries, the Lenders party thereto and Bank of America, as Administrative Agent (the
“Original Credit Agreement”).




          The Lenders were requested to extend credit to the Borrowers (such term and each other
capitalized term used but not otherwise defined herein having the meaning assigned to it in Article
I) to enable them to borrow on a standby revolving credit basis on and after the Original Effective
Date and at any time and from time to time prior to the Maturity Date an aggregate principal amount
not in excess of $1,600,000,000 at any time outstanding. The Lenders were also requested to (i)
make up to $100,000,000 of such credit facility available in the form of Letters of Credit and (ii)
provide a procedure pursuant to which the Borrowers may invite the Lenders to bid on an uncommitted
basis on short-term borrowings by the Borrowers. The proceeds of borrowings hereunder are to be
used for working capital and other general corporate purposes, including the repayment of maturing
commercial paper. The Lenders are willing to extend credit to the Borrowers on the terms and
subject to the conditions herein set forth.




          The Company has requested that the Lenders amend and restate the Original Credit Agreement in
order to, among other things, remove Hartford Life as a Borrower.




          Accordingly, the parties hereto agree as follows:




ARTICLE I




Definitions




          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:




          “Administrative Fees” shall have the meaning assigned to such term in Section 2.07(d).











 



2




          “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form
distributed to the Lenders by the Administrative Agent.




          “Affiliate” shall mean, when used with respect to a specified person, another person that
directly or indirectly controls or is controlled by or is under common control with the person
specified.




          “Agreement Currency” shall have the meaning assigned to such term in Section 9.16(b).




          “Annual Statement” shall mean, with respect to the Restricted Subsidiaries, the Annual
Statement of such Restricted Subsidiary required to be filed with the Applicable Insurance
Regulatory Authority in accordance with state law, including any exhibits, schedules, certificates
or actuarial opinions filed or delivered therewith.




          “Applicable Insurance Regulatory Authority” shall mean, with respect to any Insurance
Subsidiary, the insurance commission or similar Governmental Authority located in the state in
which such Insurance Subsidiary is domiciled and any Federal insurance Governmental Authority.




          “Applicable Percentage” shall mean on any date, with respect to Eurocurrency Standby Loans,
with respect to the Facility Fee, with respect to the Usage Fee or with respect to the LC
Participation Fee, as the case may be, the applicable percentage set forth below under the caption
“Facility Fee Percentage”, “Eurocurrency Spread”, “Usage Fee Percentage”, “Standard Letter of
Credit Participation Fee” or “Secured Letter of Credit Participation Fee”, as the case may be,
based upon the Ratings in effect on such date; provided that at any time when the Collateral Value
of the Collateral on deposit in an LC Security Account in respect of any Secured Letter of Credit
shall be less than the 110% of the portion of the LC Exposure attributable to such Secured Letter
of Credit, the Applicable Percentage used to determine the LC Participation Fees payable in respect
of such Secured Letter of Credit shall be the applicable percentage set forth below under the
caption “Standard Letter of Credit Participation Fee”:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Standard	 	 	Secured	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Letter of	 	 	Letter of	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Credit	 	 	Credit	 
	 	 	Facility Fee	 	 	Eurocurrency	 	 	Usage Fee	 	 	Participation	 	 	Participation	 
	 	 	Percentage	 	 	Spread	 	 	Percentage	 	 	Fee	 	 	Fee	 
	Category 1
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aa3 or higher by Moody’s

	 	 	.050	%	 	 	.150	%	 	 	.075	%	 	 	.150	%	 	 	.150	%
	AA- or higher by S&P
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A1 or A2 by Moody’s

	 	 	.060	%	 	 	.190	%	 	 	.075	%	 	 	.190	%	 	 	.165	%
	A+ or A by S&P
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A3 by Moody’s

	 	 	.070	%	 	 	.255	%	 	 	.075	%	 	 	.255	%	 	 	.155	%
	A- by S&P
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 













 



3


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Standard	 	 	Secured	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Letter of	 	 	Letter of	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Credit	 	 	Credit	 
	 	 	Facility Fee	 	 	Eurocurrency	 	 	Usage Fee	 	 	Participation	 	 	Participation	 
	 	 	Percentage	 	 	Spread	 	 	Percentage	 	 	Fee	 	 	Fee	 
	Category 4
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Baa1 by Moody’s

	 	 	.090	%	 	 	.310	%	 	 	.075	%	 	 	.310	%	 	 	.135	%
	BBB+ by S&P
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category 5
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Baa2 or lower or unrated by Moody’s

	 	 	.125	%	 	 	.375	%	 	 	.075	%	 	 	.375	%	 	 	.100	%
	BBB or lower or unrated by S&P
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







          For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a
Rating (other than by reason of the circumstances referred to in the last sentence of this
definition), then such Rating Agency shall be deemed to have established a Rating in Category 5;
(ii) if the Ratings established or deemed to have been established by Moody’s and S&P shall fall
within different Categories, the Applicable Percentage shall be based on the higher of the two
Ratings unless the Ratings differ by two or more Categories, in which case the Applicable
Percentage will be based upon the Category one level above the Category corresponding to the lower
Rating; and (iii) if the Ratings established or deemed to have been established by Moody’s and S&P
shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such
change shall be effective as of the date on which it is first announced by the applicable Rating
Agency. Each change in the Applicable Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody’s or S&P shall change, or if either such
Rating Agency shall cease to be in the business of rating corporate debt obligations, the Company
and the Lenders shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of Ratings from such Rating Agency and, pending the
effectiveness of any such amendment, the Applicable Percentage
shall be determined by reference to the Rating most recently in effect prior to such change or
cessation.




          “Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender
and an assignee in the form of Exhibit B hereto.




          “Augmenting Lender” shall have the meaning assigned to such term in Section 2.24(a).




          “Auto-Extension Letter of Credit” shall have the meaning assigned to such term in Section
2.06(c).




          “Available Commitment” shall mean, as to any Lender at any time, an amount equal to such
Lender’s Commitment at such time minus such Lender’s LC Exposure at such time and the aggregate of
all such Lender’s Local Currency Loans (Dollar Equivalent) outstanding at such time.




          “Base Rate” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1% per annum. For purposes hereof,
“Prime Rate” shall mean the rate of interest per annum











 



4



publicly announced from time to time by Bank
of America, N.A. as its prime rate. The Prime Rate is a rate set by Bank of America, N.A. based
upon various factors including Bank of America, N.A.’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. Each change in the Prime Rate shall be effective
at the opening of business on the date such change is publicly announced as effective. “Federal
Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as released on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so released for any day which is a Business Day, the arithmetic average
(rounded upwards to the next 1/100th of 1%), as determined by the Administrative Agent, of the
quotations for the day of such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms
thereof, the Base Rate shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability
no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.




          “Base Rate Borrowing” shall mean a Borrowing comprised of Base Rate Loans.




          “Base Rate Loan” shall mean any Base Rate Standby Loan.




          “Base Rate Standby Loan” shall mean any Standby Loan bearing interest at a rate determined by
reference to the Base Rate in accordance with the provisions of Article II.




          “Board” shall mean the Board of Governors of the Federal Reserve System of the United States.




          “Board of Directors” shall mean the Board of Directors of a Borrower or any duly authorized
committee thereof.




          “Borrowers” shall mean the Company and the Borrowing Subsidiaries.




          “Borrowing” shall mean a group of Loans of a single Type made by the Lenders (or, in the case
of a Competitive Borrowing, by the Lender or Lenders whose Competitive Bids have been accepted
pursuant to Section 2.03) on a single date and as to which a single Interest Period is in effect.




          “Borrowing Date” shall mean any date on which a Borrowing is made hereunder.











 



5




          “Borrowing Subsidiary” shall mean any Subsidiary which shall have executed and delivered to
the Administrative Agent a Borrowing Subsidiary Agreement.




          “Borrowing Subsidiary Agreement” shall mean an agreement, in the form of Exhibit D hereto,
duly executed by the Company and a Subsidiary.




          “Business Day” shall mean any day (other than a day which is a Saturday, Sunday or legal
holiday in the State of New York) on which banks are open for business in New York City; provided,
however, that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in deposits in the applicable currency in
the London interbank market, and, when used in
connection with determining any date on which any amount is to be paid or made available in
Local Currency, the term “Business Day” shall also exclude any day on which commercial banks and
foreign exchange markets are not open for business in the principal financial center in the country
of such Local Currency.




          “Calculation Date” shall mean the last Business Day of each calendar week.




          “Capitalized Lease-Back Obligation” shall mean with respect to any property or asset, at any
date as of which the same is to be determined, the total net rental obligations of the Company or a
Subsidiary under a lease of such property or asset, entered into as part of an arrangement to which
the provisions of Section 5.12 are applicable (or would have been applicable had such Subsidiary
been a Subsidiary at the time it entered into such lease), discounted to the date of computation at
the rate of interest per annum implicit in the lease (determined in accordance with GAAP). The
amount of the net rental obligation for any calendar year under any lease shall be the sum of the
rental and other payments required to be paid in such calendar year by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or not therein
designated as rental or additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges.




          A “Change in Control” shall be deemed to have occurred if (a) any person or group of persons
shall have acquired beneficial ownership of more than 30% of the outstanding Voting Shares of the
Company (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder) or (b) during any period of 12
consecutive months, commencing after the Original Effective Date, individuals who on the first day
of such period were directors of the Company (together with any replacement or additional directors
who were nominated or elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Company.




          “Code” shall mean the Internal Revenue Code of 1986, as the same may be amended from time to
time.




          “Collateral” shall mean (a) cash, (b) readily marketable commercial paper issued by issuers
with ratings of at least P-1 from Moody’s or A-1 from S&P and having













 



6



a remaining maturity not in
excess of 180 days, (c) readily marketable negotiable debt instruments constituting obligations
backed by the full faith and credit of the United States of America, (d) readily marketable
municipal bonds with ratings of at least Baa2 from Moody’s or BBB from S&P and (e) readily
marketable corporate bonds with ratings of at
least Baa2 from Moody’s or BBB from S&P and having remaining maturities not in excess of ten
years.




          “Collateral Custodian” shall mean a commercial banking institution with an office in the State
of New York and approved by the Company and the Administrative Agent.




          “Collateral Value” shall mean, at any time (a) in the case of Collateral referred to in clause
(a) of the definition of such term, the amount thereof, and (b) in the case of any other
Collateral, the then-current market value thereof, as determined by reference to publicly quoted
prices for such Collateral or, in the absence of such publicly quoted prices, by the Administrative
Agent through other reasonable means.




          “Commitment” shall mean, with respect to each Lender, the commitment of such Lender hereunder
as set forth as of the Original Closing Date in Schedule 2.01 to the Original Credit Agreement
under the heading “Commitment” or in an Assignment and Assumption delivered by such Lender under
Section 9.04 as such Lender’s Commitment may be permanently terminated or reduced from time to time
pursuant to Section 2.12 or pursuant to one or more assignments under Section 9.04. The Commitment
of each Lender shall automatically and permanently terminate on the Maturity Date if not terminated
earlier pursuant to the terms hereof.




          “Commitment Increase” shall have the meaning assigned to such term in Section 2.24(b).




          “Competitive Bid” shall mean an offer by a Lender to make a Competitive Loan pursuant to
Section 2.03.




          “Competitive Bid Accept/Reject Letter” shall mean a notification made by a Borrower pursuant
to Section 2.03(d) in the form of Exhibit A-4 hereto.




          “Competitive Bid Rate” shall mean, as to any Competitive Bid, (i) in the case of a
Eurocurrency Competitive Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed
rate of interest offered by the Lender making such Competitive Bid.




          “Competitive Bid Request” shall mean a request made pursuant to Section 2.03(a) in the form of
Exhibit A-1 hereto.




          “Competitive Borrowing” shall mean a Borrowing consisting of a Competitive Loan or concurrent
Competitive Loans from the Lender or Lenders whose Competitive Bids for such Borrowing have been
accepted under the bidding procedure described in Section 2.03.










 



7




          “Competitive Loan” shall mean a Loan made pursuant to the bidding procedure described in
Section 2.03. Each Competitive Loan shall be in Dollars and shall be a Eurocurrency Competitive
Loan or a Fixed Rate Loan.




          “Competitive Loan Exposure” shall mean, with respect to any Lender at any time, the sum of the
aggregate principal amount of all outstanding Competitive Loans made by such Lender.




          “Consolidated Net Worth” shall mean, as at any date of determination, without duplication, the
consolidated stockholders’ equity of the Company and its Subsidiaries (including perpetual
preferred stock of the Company and excluding accumulated other comprehensive income), as determined
on a consolidated basis in accordance with GAAP, plus minority interests in Subsidiaries, as
determined in accordance with GAAP, plus the Equity Unit Amount, plus, but without duplication,
Special Securities; provided that Consolidated Net Worth shall not include Special Securities to
the extent that they would account for greater than 15% of Consolidated Total Capitalization.




          “Consolidated Net Tangible Assets” shall mean the total of all assets appearing on a
consolidated balance sheet of the Company and its Restricted Subsidiaries, prepared in accordance
with GAAP (and as of a date not more than 90 days prior to the date as of which Consolidated Net
Tangible Assets are to be determined), less the sum of the following items as shown on said
consolidated balance sheet:





     (i) the book amount of all segregated intangible assets, including such items as good
will, trademarks, trademark rights, trade names, trade name rights, copyrights, patents,
patent rights and licenses and unamortized debt discount and expense less unamortized debt
premium;




     (ii) all depreciation, valuation and other reserves;




     (iii) current liabilities;




     (iv) any minority interest in the shares of stock (other than Preferred Stock) and
surplus of Restricted Subsidiaries of the Company;




     (v) the investment of the Company and its Restricted Subsidiaries in any Subsidiary of
the Company that is not a Restricted Subsidiary;




     (vi) the total indebtedness of the Company and its Restricted Subsidiaries incurred in
any manner to finance or recover the cost to the Company or any Restricted Subsidiary of
any physical property, real or personal, which prior to or simultaneously with the creation
of such indebtedness shall have been leased by the Company or a Restricted Subsidiary to
the United States of America or a department or agency thereof at an aggregate rental,
payable during that portion of the initial term of such lease (without giving effect to any
options of renewal or extension) which shall be unexpired at the date of the creation of
such indebtedness, sufficient (taken together with any amounts required to be paid by the









 



8



lessee to the lessor upon any termination of such lease) to pay in full at the stated
maturity date or dates thereof the principal of and the interest on such indebtedness;




     (vii) deferred income and deferred liabilities; and




     (viii) other items deductible under GAAP.



          “Consolidated Statutory Surplus” shall mean the sum of (i) the amount or amounts set forth on
the line for statutory surplus in the Liabilities, Surplus and Other Funds Statement in the
applicable Annual Statement or Statements or the applicable Quarterly Statement or Statements most
recently delivered to the Administrative Agent and the Lenders pursuant to Section 5.03 or, if such
statement shall be modified, the equivalent item on any applicable successor form (which amount or
amounts shall be computed in a manner consistent with SAP) with respect to the Insurance
Subsidiaries regulated in the United States; and (ii) the equivalent amount or amounts as
calculated by the Company on a quarterly basis and provided to the Administrative Agent and the
Lenders pursuant to Section 5.03 (which amount or amounts shall be computed in a manner consistent
with that used in preparing statutory financial statements in the United States) with respect to
the Insurance Subsidiaries not regulated in the United States.




          “Consolidated Total Capitalization” shall mean, as at any date of determination, the sum of
Consolidated Total Debt and Consolidated Net Worth.




          “Consolidated Total Debt” shall mean, as at any date of determination, without duplication,
(i) all Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP (but in any event including the Total Equity Unit Amount), plus (ii) preferred
securities that are mandatorily redeemable, or redeemable at the option of the holder, within 10
years of such date of determination, plus (iii) Special Securities to the extent that Special
Securities exceed 15% of Consolidated
Total Capitalization, less (iv) the Equity Unit Amount. Consolidated Total Debt shall exclude
the aggregate principal amount of all Consumer Notes outstanding at any time that S&P does not
classify the Consumer Notes as financial leverage of the Company or a Subsidiary.




          “Consumer Notes” means fixed, floating and index notes issued by Hartford Life Insurance
Company to retail investors whereby the terms of such notes require that the net proceeds to
Hartford Life Insurance Company be utilized to purchase a like amount of assets to be held by
Hartford Life Insurance Company, and whereby the instrument issued is a registered security (and
not an insurance contract of any type). Each set of Consumer Notes issued on the same date and
which have common terms and a common maturity date is referred to as a tranche of Consumer Notes.




          “Credit Event” shall have the meaning assigned to such term in Section 4.01.




          “Debtor Relief Laws” shall mean the Bankruptcy Code of the United States and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit











 



9



of creditors, moratorium,
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” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.




          “Dollars” or “$” shall mean lawful money of the United States of America.




          “Dollar Borrowing” shall mean a Borrowing comprised of Dollar Loans.




          “Dollar Equivalent” shall mean, on any date of determination, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount in any Local Currency, the
equivalent in Dollars of such amount, determined by the Administrative Agent using the Exchange
Rate with respect to such Local Currency then in effect as determined pursuant to Section 2.23(a).




          “Dollar Facility Excess” shall have the meaning assigned to such term in Section 2.23(d).




          “Dollar Facility Overage” shall mean an amount equal to the excess of (a) the Total Commitment
over (b) the aggregate amount of all Local
Currency Facility Maximum Borrowing Amounts (determined, if applicable, after giving effect to
any reduction therein made pursuant to Section 2.23(c)).




          “Dollar Loan” shall mean any Loan denominated in Dollars.




          “Dollar Standby Credit Excess” shall have the meaning assigned to such term in Section
2.23(c).




          “Dollar Standby Credit Overage” shall mean, with respect to any Lender, an amount equal to the
excess, if any, of (a) such Lender’s Commitment over (b) the aggregate Local Currency Lender
Maximum Borrowing Amounts of such Lender with respect to all Local Currency Addenda to which such
Lender or any of its Affiliates is a party.




          “Dollar Standby Extensions of Credit” shall mean, with respect to any Lender at any time, the
sum of (a) the aggregate principal amount of all Standby Loans made by such Lender then outstanding
and (b) the LC Exposure of such Lender at such time.




          “Equity Unit Amount” shall mean 75% of the aggregate principal amount of the notes included in
any outstanding Equity Units.




          “Equity Units” shall mean the 6,600,000 6% Equity Units issued by the Company on September 13,
2002, the 12,000,000 7% Equity Units issued by the











 



10



Company on May 23, 2003 and the 1,800,000 7%
Equity Units issued by the Company on May 30, 2003.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.




          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Company, 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” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan; (b) the adoption of any amendment to a
Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA; (c) 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;
(d) 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; (e) the incurrence of any
liability under Title IV of ERISA with respect to the
termination of any Plan or the withdrawal or partial withdrawal of the Company or any of its
ERISA Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the Company or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the receipt by the
Company or any ERISA Affiliate of any notice that Withdrawal Liability is being imposed 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; and (h) the occurrence of a “prohibited transaction” with
respect to which the Company or any of its Subsidiaries is a “disqualified person” (within the
meaning of Section 4975) of the Code, or with respect to which the Company or any such Subsidiary
could otherwise be liable.




          “Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.




          “Eurocurrency Competitive Loan” shall mean any Competitive Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions of Article II.




          “Eurocurrency Loan” shall mean any Eurocurrency Competitive Loan, Eurocurrency Standby Loan or
Eurocurrency Local Currency Loan.




          “Eurocurrency Local Currency Loan” shall mean any Local Currency Loan bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the provisions of Article II.




          “Eurocurrency Standby Borrowing” shall mean a Borrowing comprised of Eurocurrency Standby
Loans.











 



11




          “Eurocurrency Standby Loan” shall mean any Standby Loan bearing interest at a rate determined
by reference to the LIBO Rate in accordance with the provisions of Article II.




          “Event of Default” shall have the meaning assigned to such term in Article VI.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          “Exchange Rate” shall mean, with respect to any Local Currency on a particular date, the rate
at which such Local Currency may be exchanged into Dollars, as set forth on such date on the
Reuters currency page more particularly described in the Local Currency Addendum for Loans to be
made in such Local Currency. In the event that such rate does not appear on any Reuters currency
page, the Exchange Rate with respect to
such Local Currency shall be determined by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Administrative Agent and the Company or,
in the absence of such agreement, such Exchange Rate shall instead be the Administrative Agent’s
spot rate of exchange in the London interbank market where its foreign currency exchange operations
in respect of such Local Currency are then being conducted, at or about 10:00 a.m., local time, at
such date for the purchase of Dollars with such Local Currency, for delivery two Business Days
later; provided, however, that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any reasonable method it deems
applicable to determine such rate, and such determination shall be conclusive absent manifest
error.




          “Existing Credit Agreements” shall mean (a) the Second Amended and Restated Five-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of February 26, 2003, as
amended, among The Hartford Financial Services Group, Inc., each borrowing subsidiary party
thereto, certain lenders named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank) and Bank of America, N.A., as co-administrative agents and (b) the Three-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of December 31, 2002, as
amended, among The Hartford Financial Services Group, Inc., Hartford Life, Inc., certain lenders
named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank) and Citibank,
N.A., as co-administrative agents.




          “Facility Fee” shall have the meaning assigned to such term in Section 2.07(a).




          “Fair Value”, when used with respect to property, shall mean the fair value as determined in
good faith by the Board of Directors of the Company.




          “Fees” shall mean the Facility Fee, the Usage Fee, the LC Participation Fees and the
Administrative Fees.











 



12




          “Financial Officer” of any corporation shall mean the chief financial officer, principal
accounting officer, treasurer, associate or assistant treasurer or director of treasury services of
such corporation.




          “First Amendment” means the First Amendment dated as of September 7, 2006 to the Original
Credit Agreement.




          “First Amendment Effective Date” means the first date on which the conditions to effectiveness
of the First Amendment were satisfied in accordance with the terms thereof.




          “Fixed Rate Borrowing” shall mean a Borrowing comprised of Fixed Rate Loans.




          “Fixed Rate Loan” shall mean any Competitive Loan bearing interest at a fixed percentage rate
per annum (the “Fixed Rate”) (expressed in the form of a decimal to no more than four decimal
places) specified by the Lender making such Loan in its Competitive Bid.




          “GAAP” shall mean generally accepted accounting principles in the United States, applied on a
consistent basis.




          “Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.




          “Guaranteed Obligations” shall mean the principal of and interest on the Loans made to, and
the due and punctual performance of all other obligations, monetary or otherwise of, the Borrowing
Subsidiaries hereunder, under any Letter of Credit or under any Local Currency Addendum.




          “Increase Effective Date” shall have the meaning assigned to such term in Section 2.24(b).




          “Increasing Lender” shall have the meaning assigned to such term in Section 2.24(a).




          “Incremental Facility Amount” shall mean, at any time, an amount equal to $500,000,000 minus
the aggregate amount, if any, by which the Total Commitment shall have been increased prior to such
time pursuant to Section 2.24.




          “Indebtedness” of any person shall mean all indebtedness representing money borrowed, all
obligations of such person evidenced by notes, bonds, debentures or other similar instruments, or
the deferred purchase price of property (other than trade accounts payable) or any capitalized
lease obligation, which in any case is created, assumed, incurred or guaranteed in any manner by
such corporation or for which such corporation is responsible or liable (whether by agreement to
purchase indebtedness of, or to supply funds to or invest in, others or otherwise).










 



13




          “Information” shall have the meaning assigned to such term in Section 9.17.




          “Initial Loans” shall have the meaning assigned to such term in Section 2.24(b).




          “Insurance Subsidiaries” shall mean those Subsidiaries set forth on Schedule 1.01 hereto and
any future Subsidiaries principally engaged in one or more of the property, casualty, life
insurance and financial services businesses.




          “Interest Payment Date” shall mean (a) with respect to any Base Rate Loan, the last Business
Day of each March, June, September and December and the Maturity Date; (b) with respect to a
Eurocurrency Loan or a Fixed Rate Loan, the last day of each Interest Period applicable thereto
and, in the case of a Eurocurrency Loan with an Interest Period of more than three months’ duration
or a Fixed Rate Loan with an Interest Period of more than 90 days’ duration, each day that would
have been an Interest Payment Date for such Loan had successive Interest Periods of three months’
duration or 90 days’ duration, as the case may be, been applicable to such Loan and, in addition,
the date of any prepayment of each Loan or conversion of such Loan to a Loan of a different Type;
and (c) with respect to any Local Currency Loan, such days as shall be specified in the applicable
Local Currency Addendum.




          “Interest Period” shall mean (a) as to any Eurocurrency Borrowing, the period commencing on
the date of such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the Borrower may elect; (b) as to any Fixed Rate Borrowing, the
period commencing on the date of such Borrowing and ending on the date specified in the Competitive
Bids in which the offers to make the Fixed Rate Loans comprising such Borrowing were extended,
which shall not be earlier than seven days after the date of such Borrowing or later than 360 days
after the date of such Borrowing; and (c) as to any Local Currency Borrowing, such periods as shall
be specified in the applicable Local Currency Addendum; provided, however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurocurrency Loans only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.




          “ISP” shall mean, 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).




          “Joinder Agreement” shall have the meaning assigned to such term in the Secured Letter of
Credit Agreement.











 



14




          “Judgment Currency” shall have the meaning assigned to such term in Section 9.16(b).




          “LC Disbursement” shall mean a payment made by the LC Issuer pursuant to a Letter of Credit.




          “LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the applicable Borrower at such time. The LC
Exposure of any Lender at any time shall be its Pro Rata Percentage of the total LC Exposure at
such time.




          “LC Issuer” shall mean Bank of America, N.A., in its capacity as issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.06(j). The LC Issuer may,
in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the LC
Issuer, in which case the term “LC Issuer” shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.




          “LC Participation Fee” shall have the meaning assigned to such term in Section 2.07(c).




          “LC Security Account” shall mean an account established and maintained by a Borrower or a
Subsidiary with a Collateral Custodian at an office in the State of New York for the deposit of
Collateral, and over which account and all Collateral in such account the Administrative Agent
shall have control and the right to issue entitlement orders (as such terms are defined in the
Uniform Commercial Code of the State of New York) pursuant to arrangements reasonably satisfactory
to the Administrative Agent.




          “Lender Affiliate” shall mean, (a) with respect to any Lender, (i) an Affiliate of such Lender
or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit
in the ordinary course of its business and is administered or managed by a Lender or an Affiliate
of such Lender and (b) with respect to any Lender that is a fund which invests in bank loans and
similar extensions of credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.




          “Letter of Credit” shall mean any letter of credit issued pursuant to this Agreement.




          “Letter of Credit Application” shall mean an application and agreement for the issuance,
amendment, renewal or extension of a Letter of Credit in the form from time to time in use by the
LC Issuer.




          “Letter of Credit Expiration Date” means the date that is five Business Days prior to the
Maturity Date.











 



15




          “LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time,
on the Quotation Day for such Interest Period by reference to the British Bankers Association LIBOR
Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing
quotation of BBA LIBOR as designated by the Administrative Agent from time to time) for deposits in
the currency of such Borrowing (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, “LIBO Rate” shall mean an
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) determined by the
Administrative Agent to be the average of the rates per annum at which dollar deposits or deposits
in the applicable Local Currency approximately equal in principal amount to (i) in the case of a
Standby Borrowing that is a Eurocurrency Borrowing, the Administrative Agent’s portion of such
Eurocurrency Borrowing; (ii) in the case of a Competitive Borrowing, a principal amount that would
have been the Administrative Agent’s portion of such Competitive Borrowing had such Competitive
Borrowing been a Standby Borrowing; and (iii) in the case of a Local Currency Borrowing, such
Borrowing, and for a maturity comparable to such Interest Period, are offered to the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.




          “Lien” shall mean, with respect to any property or asset, any mortgage, deed of trust, lien,
pledge, security interest, charge or other encumbrance on, of or in such property or asset.




          “Loan” shall mean a Competitive Loan, a Local Currency Loan or a Standby Loan, whether made as
a Eurocurrency Loan, a Base Rate Loan or a Fixed Rate Loan, as permitted hereby.




          “Loan Documents” shall mean this Agreement, the Borrowing Subsidiary Agreements, the Local
Currency Addenda, any promissory notes issued pursuant to Section 9.04(i), the Secured Letter of
Credit Agreement and any Joinder Agreements entered into pursuant to Section 2.06(o).




          “Local Currency” shall mean any currency other than Dollars as to which an Exchange Rate may
be calculated.




          “Local Currency Addendum” shall mean a local currency addendum between a Borrower and one or
more Local Currency Lenders, substantially in the form of Exhibit E hereto, and the documentation
referred to therein, to the extent not inconsistent with this Agreement.




          “Local Currency Borrowing” shall mean a Borrowing comprised of Local Currency Loans.











 



16




          “Local Currency Credit Event” shall mean each Borrowing under a Local Currency Addendum.




          “Local Currency Equivalent” shall mean, on any date of determination, with respect to any
amount in Dollars, the equivalent in the relevant Local Currency of such amount, determined by the
Administrative Agent using the Exchange Rate with respect to such Local Currency then in effect as
determined pursuant to Section 2.23(a).




          “Local Currency Facility Maximum Borrowing Amount” shall have the meaning assigned to such
term in Section 2.22(b).




          “Local Currency Lender” shall mean any Lender (or any Affiliate, branch or agency thereof)
party to a Local Currency Addendum. In the event any agency or Affiliate of a Lender shall be
party to a Local Currency Addendum, such agency or Affiliate shall, to the extent of any commitment
extended and any Loans made by it, have all the rights of such Lender hereunder; provided, that
such Lender shall continue to the exclusion of such agency or Affiliate to have all the voting and
consensual rights vested in it by the terms hereof.




          “Local Currency Lender Maximum Borrowing Amount” shall have the meaning assigned to such term
in Section 2.22(b).




          “Local Currency Loan” shall mean any Loan, denominated in a currency other than Dollars, made
to a Borrower pursuant to Section 2.01(b) and a Local Currency Addendum.




          “Local Currency Loans (Dollar Equivalent)” shall mean the Dollar Equivalent of the relevant
Local Currency Loans.




          “Local Currency Standby Borrowing” shall mean any Standby Borrowing comprised of Local
Currency Loans.




          “Margin” shall mean, as to any Eurocurrency Competitive Loan, the margin (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal places) to be added
to or subtracted from the LIBO Rate in order to determine the interest rate applicable to such
Loan, as specified in the Competitive Bid relating to such Loan.




          “Margin Regulations” shall mean Regulations T, U and X of the Board as from time to time in
effect, and all official rulings and interpretations thereunder or thereof.




          “Margin Stock” shall have the meaning given such term under Regulation U of the Board.




          “Material Adverse Effect” shall mean a materially adverse effect on the business, assets,
operations or condition, financial or otherwise, of the Company and its Subsidiaries taken as a
whole.











 



17




          “Maturity Date” shall mean September 7, 2010.




          “Moody’s” shall mean Moody’s Investors Service, Inc. or any of its successors.




          “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA
to which the Company or any ERISA Affiliate (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or accrued an obligation to
make contributions.




          “Non-Extension Notice Date” shall have the meaning assigned to such term in Section 2.06(c).




          “Non-Increasing Lender” shall have the meaning assigned to such term in Section 2.24(a).




          “Notice of Competitive Bid Request” shall mean a notification made pursuant to Section 2.03(a)
in the form of Exhibit A-2 hereto.




          “Original Effective Date” shall mean the date on which the conditions set forth in Section
4.02 were satisfied in respect of the Five-Year Competitive Advance and Revolving Credit Facility
Agreement dated September 7, 2005.




          “Original Closing Date” shall mean September 7, 2005.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.




          “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership or government, or any agency or political subdivision thereof.




          “Plan” shall mean 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 307 of ERISA, and in
respect of which any Borrower 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.




          “Preferred Stock” shall mean any capital stock entitled by its terms to a preference (a) as
to dividends or (b) upon a distribution of assets.




          “Pro Rata Percentage” of any Lender at any time shall mean the percentage of the Total
Commitment represented by such Lender’s Commitment. If the Commitments have terminated or expired,
the Pro Rata Percentages shall be determined based upon the Commitments most recently in effect,
giving effect to any assignments.











 



18




          “Quarterly Statement” shall mean, with respect to any Restricted Subsidiary, the Quarterly
Statement of such Restricted Subsidiary required to be filed with the Applicable Insurance
Regulatory Authority in accordance with state law, including any exhibits, schedules, certificates
or actuarial opinions filed or delivered therewith.




          “Quotation Day” shall mean, with respect to any Eurocurrency Borrowing for any Interest
Period, the day on which it is market practice in the relevant interbank market for prime banks to
give quotations for deposits in the currency of such Borrowing for delivery on the first day of
such Interest Period. If such quotations would normally be given by prime banks on more than one
day, the Quotation Day will be the last of such days.




          “Rating Agencies” shall mean Moody’s and S&P.




          “Ratings” shall mean the ratings from time to time established by the Rating Agencies for
senior, unsecured, non-credit-enhanced long-term debt of the Company.




          “Register” shall have the meaning given such term in Section 9.04(d).




          “Reportable Event” shall mean any reportable event as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414).




          “Required Lenders” shall mean, at any time, Lenders having Commitments representing more than
50% of the Total Commitment or, for purposes of acceleration pursuant to clause (ii) of Article VI
or following the termination of the Commitments, Lenders holding Loans representing more than 50%
of the aggregate principal amount of the Loans outstanding. For purposes of determining the
Required Lenders, any amounts denominated in a Local Currency shall be translated into Dollars at
the Exchange Rates in effect on the date of acceleration pursuant to clause (ii) of Article VI or
the date of termination of the Commitments, as applicable.




          “Reset Date” shall have the meaning assigned to such term in Section 2.23(a).




          “Responsible Officer” of any corporation shall mean any executive officer or Financial Officer
of such corporation and any other officer or similar official thereof responsible for the
administration of the obligations of such corporation in respect of this Agreement.




          “Restatement Effective Date” shall mean the first date on which the conditions set forth in
Section 4.04 are satisfied.




          “Restricted Subsidiary” means any Subsidiary which is incorporated in any state of the United
States or in the District of Columbia and which is a regulated










 



19



insurance company principally
engaged in one or more of the property, casualty, life insurance and financial services businesses
and which has total assets representing 10% or more of the total assets of the Company and its
consolidated Subsidiaries (including such Subsidiary), in each case as set forth on the most recent
fiscal year-end balance sheets of such Subsidiary and the Company and its consolidated
Subsidiaries, respectively, and computed in accordance with GAAP or SAP. Such Subsidiary must be
designated a Restricted Subsidiary in a notice delivered by the Company and certified by a
Responsible Officer to the Administrative Agent for distribution to the Lenders. In the event that
the aggregate total assets of the Restricted Subsidiaries represent less than 80% of the total
assets of the Company and its consolidated Subsidiaries, the Board of Directors of the Company, as
evidenced by a resolution of such Board of Directors, shall promptly designate an additional
Subsidiary or Subsidiaries as Restricted Subsidiaries in order that, after such designations, the
aggregate total assets of the Restricted Subsidiaries represent at least
80% of the total assets of the Company and its consolidated Subsidiaries; provided that all
Subsidiaries with total assets of 10% or more of the total assets of the Company and its
consolidated Subsidiaries have previously been designated as Restricted Subsidiaries.




          “S&P” shall mean Standard and Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. or any of its successors.




          “SAP” shall mean, with respect to any Insurance Subsidiary, the accounting principles and
procedures prescribed or permitted by the Applicable Insurance Regulatory Authority applied on a
basis consistent with those that are indicated in Section 1.02.




          “SEC” shall mean the Securities and Exchange Commission or any of its successors.




          “Secured Letter of Credit” shall mean a Letter of Credit designated as such by the Company as
provided in Section 2.06(o).




          “Secured Letter of Credit Agreement” shall mean a Secured Letter of Credit Agreement
substantially in the form of Exhibit F hereto, with such modifications thereto as the Company and
the Administrative Agent shall agree upon.




          “Special Securities” shall mean (a) redeemable preferred securities and (b) any other
securities for which the Company provides evidence satisfactory to the Administrative Agent that
such securities are afforded equity capital credit by S&P, that, in the case of clauses (a) and
(b), are not redeemable, whether mandatorily or at the option of the holder thereof, sooner than
the later of (i) the tenth anniversary of the issuance thereof and (ii) the first anniversary of
the Maturity Date.




          “Standard Letter of Credit” shall mean a Letter of Credit that is not a Secured Letter of
Credit.




          “Standby Borrowing” shall mean a Borrowing consisting of simultaneous Standby Loans from each
of the Lenders.











 



20




          “Standby Borrowing Request” shall mean a request made pursuant to Section 2.04 in the form of
Exhibit A-5 hereto.




          “Standby Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the
aggregate principal amount at such time of (a) all outstanding Standby Loans of such Lender, (b)
the aggregate Dollar Equivalent of the principal amount of all outstanding Local Currency Loans
of such Lender (and each agency, branch or Affiliate of such Lender acting as a Local Currency
Lender) and (c) the LC Exposure of such Lender.




          “Standby Loans” shall mean the revolving loans made pursuant to Section 2.04(a). Each Standby
Loan shall be in Dollars and shall be a Eurocurrency Standby Loan or a Base Rate Loan.




          “Statement of Actuarial Opinion” shall mean, with respect to the Restricted Subsidiaries, the
Statement of Actuarial Opinion required to be filed with the Applicable Insurance Regulatory
Authority in accordance with state law or, if such Applicable Insurance Regulatory Authority shall
no longer require such a statement, information equivalent to that required to be included in the
Statement of Actuarial Opinion that was filed immediately prior to the time such statement was no
longer required.




          “subsidiary” shall mean, with respect to any person (the “parent”), any corporation,
association or other business entity of which securities or other ownership interests representing
more than 50% of the ordinary voting power are, at the time as of which any determination is being
made, owned or controlled by the parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.




          “Subsidiary” shall mean a subsidiary of the Company.




          “Subsequent Borrowings” shall have the meaning assigned to such term in Section 2.24(b).




          “Total Commitment” shall mean, at any time, the aggregate amount of Commitments of all the
Lenders, as in effect at such time.




          “Total Equity Unit Amount” shall mean 100% of the aggregate principal amount of the notes
included in any outstanding Equity Units.




          “Transactions” shall have the meaning assigned to such term in Section 3.02.




          “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined and the
currency in which such Loan or the Loans comprising such Borrowing are denominated. For purposes
hereof, “Rate” shall include the LIBO Rate, the Base Rate and the Fixed Rate, and currency shall
include Dollars and any Local Currency permitted hereunder.











 



21




          “Usage Fee” shall have the meaning assigned to such term in Section 2.07(b).




          “USA Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001.




          “Voting Shares” shall mean, as to shares of a particular corporation, outstanding shares of
stock of any class of such corporation entitled to vote in the election of directors, excluding
shares entitled so to vote only upon the happening of some contingency.




          “Withdrawal Liability” shall mean 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 VI of ERISA.




          SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP or, to the extent such terms apply to
an Insurance Subsidiary, SAP, in each case as in effect from time to time.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make Standby Loans to the Borrowers, at any time and from time to time on and after the Original
Effective Date and until the earlier of the Maturity Date and the termination of the Commitment of
such Lender.




          (b) Subject to the terms and conditions and relying upon the representations and warranties
set forth herein and in the applicable Local Currency Addendum, each Local Currency Lender agrees,
severally and not jointly, to make Local Currency Loans to the applicable Borrowers at any time and
from time to time on and after the execution of the applicable Local Currency Addendum and until
the earlier of the Maturity Date and the termination of the Commitment (or the commitment under
such Local Currency Addendum) of such Local Currency Lender.




          (c) Notwithstanding anything to the contrary contained in this Agreement, in no event may
Standby Loans or Local Currency Loans be borrowed under this Article II or any Local Currency
Addendum if, after giving effect thereto (and to any concurrent repayment or prepayment of Loans),
(i) the sum of the aggregate Standby











 



22



Credit Exposures and the aggregate Competitive Loan Exposures
would exceed the Total Commitment then in effect; (ii) the Standby Credit Exposure of any Lender
(and the Affiliates of such Lender that are Local Currency Lenders) would exceed such Lender’s
Commitment; or (iii) the Dollar Equivalent of the aggregate principal amount of outstanding Local
Currency Loans under any Local Currency Addendum would exceed the applicable Local Currency
Facility Maximum Borrowing Amount.




          Within the foregoing limits, the Borrowers may borrow, pay or prepay and reborrow Standby
Loans and Local Currency Loans hereunder, on and after the Original Effective Date and prior to the
Maturity Date, subject to the terms, conditions and limitations set forth herein.




          SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part of a Borrowing consisting
of Standby Loans made by the Lenders ratably in accordance with their respective Available
Commitments; provided, however, that the failure of any Lender to make any Standby Loan shall not
in itself relieve any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Each Local Currency Loan shall be made as part of a
Borrowing consisting of Local Currency Loans made by the Local Currency Lenders ratably in
accordance with the applicable Local Currency Lender Maximum Borrowing Amounts; provided, however,
that the failure of any Local Currency Lender to make any Local Currency Loan shall not in itself
relieve any other Local Currency Lender of its obligation to lend hereunder (it being understood,
however, that no Local Currency Lender shall be responsible for the failure of any other Local
Currency Lender to make any Local Currency Loan required to be made by such other Local Currency
Lender). Each Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.03. Each Borrowing shall be (i) in the case of Competitive Borrowings, in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than $5,000,000; (ii) in
the case of Standby Borrowings, in an aggregate principal amount which is an integral multiple of
$5,000,000 and not less than $20,000,000 (or an aggregate principal amount equal to (i) the
remaining balance of the Available Commitments or (ii) in the case of Base Rate Borrowings, the
amount required to finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e)); and (iii) in the case of Local Currency Loans, in an aggregate principal amount which
complies with the
requirements set forth in the applicable Local Currency Addendum. All Standby Loans and
Competitive Loans made pursuant to this Article II shall be denominated in Dollars.




          (b) Each Competitive Borrowing shall be comprised entirely of Eurocurrency Competitive Loans
or Fixed Rate Loans, and each Standby Borrowing shall be comprised entirely of Eurocurrency Standby
Loans or Base Rate Loans, as the Borrower may request pursuant to Section 2.03 or 2.04, as
applicable. Each Lender may at its option make any Eurocurrency Loan by causing any domestic or
foreign branch, agency or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type may be











 



23



outstanding
at the same time. For purposes of the foregoing, Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered separate Loans.




          (c) Subject to Section 2.05 and, in the case of any Local Currency Loan, to any alternative
procedures set forth in the applicable Local Currency Addendum, each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of immediately available
funds to the Administrative Agent, not later than 12:00 noon, New York City time, and the
Administrative Agent shall by 2:00 p.m., New York City time, credit the amounts so received to the
account or accounts specified from time to time in one or more notices delivered by the Company to
the Administrative Agent; provided that Base Rate Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the LC
Issuer. If a Borrowing shall not occur on the proposed date thereof because any condition
precedent herein specified shall not have been met, the Administrative Agent shall return the
amounts so received to the respective Lenders. Competitive Loans shall be made by the Lender or
Lenders whose Competitive Bids therefor are accepted pursuant to Section 2.03 in the amounts so
accepted. Standby Loans and Local Currency Loans shall be made by the Lenders and the Local
Currency Lenders, as applicable, pro rata in accordance with Section 2.17. Unless the
Administrative Agent shall have received notice from a Lender prior to the date (or, in the case of
Base Rate Borrowings, on the date) of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Administrative Agent may, in reliance upon
such assumption, make available to the applicable Borrower on such date a corresponding amount in
the required currency. If and to the extent that such Lender shall not have made such portion
available to the
Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest thereon
in such currency, for each day from the date such amount is made available to such Borrower until
the date such amount is repaid to the Administrative Agent at (i) in the case of such Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of
such Lender, a rate determined by the Administrative Agent to represent its cost of overnight
funds. If such Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement.




          (d) Each Competitive Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
Each Standby Loan shall be a Eurocurrency Standby Loan or a Base Rate Standby Loan. Each Local
Currency Loan shall be a Eurocurrency Local Currency Loan or shall bear interest at a rate
specified in the applicable Loan Currency Addendum.




          SECTION 2.03. Competitive Bid Procedure. (a) Subject to the terms and conditions set forth
herein, from time to time on or after the Original Effective Date and until the earlier of the
Maturity Date and the termination of the Commitments, each











 



24



Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive
Loans; provided that, notwithstanding anything to the contrary contained in this Agreement, in no
event may Competitive Loans be borrowed if, after giving effect thereto (and to any concurrent
repayment or prepayment of Loans), the sum of the aggregate Standby Credit Exposures and the
aggregate Competitive Loan Exposures would exceed the Total Commitment then in effect. In order to
request Competitive Bids, a Borrower shall hand deliver or telecopy to the Administrative Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be received by the
Administrative Agent (i) in the case of a Eurocurrency Competitive Loan, not later than 11:00 a.m.,
New York City time, four Business Days before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 11:00 a.m., New York City time, one Business Day before a
proposed Competitive Borrowing. No Base Rate Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the
format of Exhibit A-1 hereto may be rejected in the Administrative Agent’s sole discretion, and the
Administrative Agent shall promptly notify the applicable Borrower of such rejection by telecopy.
Each Competitive Bid Request shall refer to this Agreement and specify (x) whether the Borrowing
then being requested is to be a Eurocurrency Borrowing or a Fixed Rate Borrowing, (y) the date of
such Borrowing (which shall be a Business Day) and the aggregate principal amount thereof, which
shall be in a minimum principal
amount of $5,000,000 and in an integral multiple of $1,000,000, and (z) the Interest Period
with respect thereto (which may not end after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative Agent shall telecopy
to the Lenders a Notice of Competitive Bid Request inviting the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Loans.




          (b) Each Lender invited to bid may, in its sole discretion, make one or more Competitive Bids
to the applicable Borrower responsive to such Borrower’s Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent by telecopy, in the form of Exhibit
A-3 hereto, (i) in the case of a Eurocurrency Competitive Loan, not later than 10:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing. A Lender may submit multiple bids to the Administrative Agent. Competitive
Bids that do not conform substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall refer to
this Agreement and specify (x) the principal amount (which shall be in a minimum principal amount
of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the entire principal
amount of the Competitive Borrowing requested) of the Competitive Loan or Loans that the Lender is
willing to make, (y) the Competitive Bid Rate or Rates at which the Lender is prepared to make the
Competitive Loan or Loans, and (z) the Interest Period and the last day thereof. If any Lender
invited to bid shall elect not to make a Competitive Bid, such Lender shall so notify the
Administrative Agent by telecopy (I) in the case of Eurocurrency Competitive Loans, not later than
10:30 a.m., New York City time, three Business Days before a












 



25



proposed Competitive Borrowing and
(II) in the case of Fixed Rate Loans, not later than 10:30 a.m., New York City time, on the day of
a proposed Competitive Borrowing; provided, however, that failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Lender pursuant to this paragraph (b)
shall be irrevocable.




          (c) The Administrative Agent shall as promptly as practicable notify the applicable Borrower,
by telecopy, of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of
each Competitive Loan in respect of which a Competitive Bid was made and the identity of the Lender
that made each bid. The Administrative Agent shall send a copy of all Competitive Bids to the
applicable Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section 2.03.




          (d) The applicable Borrower may in its sole and absolute discretion, subject only to the
provisions of this paragraph (d), accept or reject any Competitive Bid referred to in paragraph (c)
above. The applicable Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has
decided to accept or reject any of or all the bids referred to in paragraph (c) above not more than
one hour after it shall have been notified of such bids by the Administrative Agent pursuant to
such paragraph (c); provided, however, that (i) the failure of the applicable Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) above; (ii)
the applicable Borrower shall not accept a bid made at a particular Competitive Bid Rate if it has
decided to reject a bid made at a lower Competitive Bid Rate; (iii) the aggregate amount of the
Competitive Bids accepted by the applicable Borrower shall not exceed the principal amount
specified in the Competitive Bid Request; (iv) if the applicable Borrower shall accept a bid or
bids made at a particular Competitive Bid Rate but the amount of such bid or bids shall cause the
total amount of bids to be accepted to exceed the amount specified in the Competitive Bid Request,
then the applicable Borrower shall accept a portion of such bid or bids in an amount equal to the
amount specified in the Competitive Bid Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which acceptance, in the case of multiple
bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each
such bid at such Competitive Bid Rate; and (v) except pursuant to clause (iv) above, no bid shall
be accepted for a Competitive Loan unless such Competitive Loan is in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided further, however, that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the applicable Borrower. A notice given
pursuant to this paragraph (d) shall be irrevocable.










 



26




          (e) The Administrative Agent shall promptly notify each bidding Lender whether or not its
Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by
telecopy, and each successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has been accepted.




          (f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a
Lender, it shall submit such bid directly to the applicable Borrower one quarter of an hour earlier
than the latest time at which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.




          (g) All notices required by this Section 2.03 shall be given in accordance with Section 9.01.




          SECTION 2.04. Standby and Local Currency Borrowing Procedure.
(a) In order to request a Standby Borrowing, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Standby Borrowing Request in the form of Exhibit A-5 hereto
(i) in the case of a Eurocurrency Standby Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before such Borrowing, and (ii) in the case of a Base Rate Borrowing (including
a Base Rate Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e)), not later than 10:30 a.m., New York City time, on the day of such Borrowing. No Fixed
Rate Loan shall be requested or made pursuant to a Standby Borrowing Request. Such notice shall be
irrevocable and shall in each case specify (A) whether the Borrowing then being requested is to be
a Eurocurrency Standby Borrowing or a Base Rate Borrowing; (B) the date of such Standby Borrowing
(which shall be a Business Day) and the amount thereof; and (C) if such Borrowing is to be a
Eurocurrency Standby Borrowing, the Interest Period with respect thereto, which shall not end after
the Maturity Date. If no election as to the Type of Standby Borrowing is specified in any such
notice, then the requested Standby Borrowing shall be a Base Rate Borrowing. If no Interest Period
with respect to any Eurocurrency Standby Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month’s duration.
Notwithstanding any other provision of this Agreement to the contrary, no Standby Borrowing shall
be requested if the Interest Period with respect thereto would end after the Maturity Date. The
Administrative Agent shall promptly advise each of the Lenders of any notice given pursuant to this
Section 2.04 and of each Lender’s portion of the requested Borrowing.




          (b) In order to request a Local Currency Borrowing, a Borrower shall give the notice required
under the applicable Local Currency Addendum and shall simultaneously deliver a copy of such notice
to the Administrative Agent.




          SECTION 2.05. Conversion and Continuation of Standby Loans. Each Borrower shall have the
right at any time upon prior irrevocable notice to the Administrative Agent (i) not later than
10:30 a.m.,
New York City time, on the day of the conversion, to convert all or any part of any
Eurocurrency Standby Loan into a Base Rate Standby Loan and (ii) not later than 10:30 a.m., New
York City time, three Business










 



27



Days prior to conversion or continuation, to convert any Base Rate
Standby Loan into a Eurocurrency Standby Loan or to continue any Eurocurrency Standby Loan as a
Eurocurrency Standby Loan for an additional Interest Period, subject in each case to the following:





     (a) if less than all the outstanding principal amount of any Standby Borrowing shall
be converted or continued, the aggregate principal amount of the Standby Borrowing
converted or continued shall be an integral multiple of $5,000,000 and not less than
$20,000,000;




     (b) accrued interest on an Eurocurrency Standby Borrowing (or portion thereof) being
converted shall be paid by the applicable Borrower at the time of conversion;




     (c) if any Eurocurrency Standby Loan is converted at a time other than the end of the
Interest Period applicable thereto, the applicable Borrower shall pay, upon demand, any
amounts due to the Lenders pursuant to Section 2.16;




     (d) any portion of a Standby Borrowing maturing or required to be repaid in less than
one month may not be converted into or continued as a Eurocurrency Standby Loan;




     (e) any portion of a Eurocurrency Standby Loan which cannot be continued as a
Eurocurrency Standby Loan by reason of clause (d) above shall be automatically converted at
the end of the Interest Period in effect for such Eurocurrency Standby Loan into a Base
Rate Loan;




     (f) no Interest Period may be selected for any Eurocurrency Standby Borrowing that
would end later than the Maturity Date; and




     (g) at any time when there shall have occurred and be continuing any Default or Event
of Default, no Borrowing may be converted into or continued as a Eurocurrency Standby
Borrowing.



          Each notice pursuant to this Section 2.05 shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Standby Borrowing to be converted or
continued; (ii) whether such Standby Borrowing is to be converted to or continued as a Eurocurrency
Standby Loan or a Base Rate Loan; (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day); and (iv) if such
Standby Borrowing is to be converted to or continued as a Eurocurrency Standby Loan, the
Interest Period with respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurocurrency Standby Loan, the applicable
Borrower shall be deemed to have selected an Interest Period of one month’s duration. If no notice
shall have been given in accordance with this Section 2.05 to convert or continue any Standby
Borrowing, such Standby Borrowing shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued as a Base Rate Borrowing.











 



28




          SECTION 2.06. Letters of Credit. (a) General. (i)Subject to the terms and conditions set
forth herein, (A) the LC Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.06, (1) from time to time on any Business Day on or after the Original Effective
Date and until the earlier of the Letter of Credit Expiration Date and the date of the termination
of the Commitments hereunder, to issue Letters of Credit (and to amend, renew or extend Letters of
Credit previously issued by it) denominated in Dollars (x) for the account of any Borrower or (y)
so long as the Company is a co-applicant with respect to such Letter of Credit for the account of
any Subsidiary (and the Company shall be deemed the sole account party in respect of such Letter of
Credit for purposes of this Agreement notwithstanding the listing of any Subsidiary as an account
party or applicant with respect to such Letter of Credit), and (2) to honor drawings under the
Letters of Credit in accordance with the terms of such Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued hereunder and any drawings thereunder;
provided that, notwithstanding anything to the contrary contained in this Agreement, in no event
shall a Letter of Credit be issued, amended, renewed or extended if, after giving effect thereto,
(w) the LC Exposure would exceed $100,000,000; (x) the sum of the aggregate Standby Credit
Exposures and the aggregate Competitive Loan Exposures would exceed the Total Commitment then in
effect; or (y) the Standby Credit Exposure of any Lender (and the Affiliates of such Lender that
are Local Currency Lenders) would exceed such Lender’s Commitment. No Letter of Credit shall be
denominated in a currency other than Dollars. Each request by a Borrower for the issuance,
amendment, renewal or extension of a Letter of Credit shall be deemed to be a representation and
warranty by such Borrower that such issuance, amendment, renewal or extension of Letter of Credit,
as 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.




          (ii) The LC 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 LC Issuer from
issuing such Letter of Credit, or any law applicable to the LC Issuer or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the LC Issuer shall prohibit, or
request that the LC Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the LC
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the LC Issuer is not otherwise compensated hereunder) not
in effect on the Original Effective Date, or shall impose upon the LC Issuer any
material unreimbursed loss, cost or expense which was not applicable on the
Original Effective Date;









 



29



     (B) the issuance of such Letter of Credit would violate one or more policies
of general applicability of the LC Issuer;




     (C) except as otherwise agreed by the Administrative Agent and the LC Issuer,
such Letter of Credit is in an initial stated amount less than $100,000;




     (D) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (E) a default by any Lender in the performance of its obligations to fund
under this Section exists or any Lender has (1) failed to fund or pay any amount
required to be funded or paid by it under this Agreement or (2) been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding, unless
arrangements satisfactory to the LC Issuer have been implemented to eliminate the
LC Issuer’s risk with respect to such Lender. It is agreed that the requirements
of this subparagraph (F) will be deemed to have been satisfied if the Borrower
shall have deposited cash in an account with the Administrative Agent in an amount
equal to the affected Lender’s Pro Rata Percentage of the face amount of the
requested Letter of Credit to provide for the payment of such Lender’s Pro Rata
Percentage of any LC Disbursements thereunder. The parties hereto
agree that, notwithstanding any other provision of this Agreement, any cash on
deposit under this subparagraph will be applied solely to satisfy the obligations of
such affected Lender under paragraph (d) of this Section (or, if and to the extent
such cash on deposit shall exceed such Lender’s Pro Rata Percentage of the LC
Exposure and any unreimbursed LC Disbursements, returned to the Company). Nothing
in this subparagraph shall relieve the affected Lender from any liability that it
may have to any Borrower or to the LC Issuer as a result of any failure by such
Lender to perform its obligations hereunder.




     (iii) The LC Issuer shall not amend any Letter of Credit if the LC Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (iv) The LC Issuer shall be under no obligation to amend any Letter of Credit if (A)
the LC 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.




     (v) The LC 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 LC Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article VIII
with respect to any acts taken or omissions suffered by the LC Issuer in connection with
Letters of Credit issued by it or









 



30



proposed to be issued by it and any other documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article VIII included the LC Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the LC Issuer.



          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the applicable Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the LC Issuer) to the LC Issuer
and the Administrative Agent (at least two Business Days in advance of the requested date of
issuance, amendment, renewal or extension) a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of such Borrower, requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the
date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section),
the amount of such Letter of Credit, the account party or parties with respect to
such Letter of Credit, the name and address of the beneficiary thereof, the documents to be
presented by such beneficiary in case of any drawing thereunder, the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder and such other information as
the LC Issuer may reasonably require to prepare, amend, renew or extend such Letter of Credit.
Additionally, such Borrower also shall furnish to the LC Issuer and the Administrative Agent such
other documents and information pertaining to such requested issuance, amendment, renewal or
extension of Letter of Credit as the LC Issuer or the Administrative Agent may reasonably require.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business
on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, one year after such renewal or extension) and
(ii) the Letter of Credit Expiration Date; provided that if the applicable Borrower so requests in
the applicable Letter of Credit Application, the LC Issuer shall agree to issue a Letter of Credit
that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”). Any such
Auto-Extension Letter of Credit must permit the LC 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. The applicable Borrower shall not be required to make a specific request to the LC 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 LC 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 LC Issuer shall not permit any such extension if the LC 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 this Section 2.06 or otherwise).











 



31




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of the LC Issuer
or the Lenders, the LC Issuer hereby grants to each Lender, and each Lender hereby acquires from
the LC Issuer, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage
of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the LC Issuer, such Lender’s Pro Rata Percentage of
each LC Disbursement made by the LC Issuer and not
reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the applicable Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit, the occurrence and continuance of a Default or reduction or termination of the
Commitments or any other occurrence, event or condition, whether or not similar to any of the
foregoing, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.




          (e) Reimbursement. If the LC Issuer shall make any LC Disbursement in respect of a Letter of
Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York
City time, (i) on the Business Day immediately following the day on which such Borrower receives
notice of such LC Disbursement, if such notice is received prior to or at 12:00 noon, New York City
time, on the day of receipt, or (ii) two Business Days after the day on which such Borrower
receives such notice, if such notice is received after 12:00 noon, New York City time, on the day
of receipt; provided that the applicable Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.04 that such payment be financed
with a Base Rate Borrowing in an equivalent amount and, to the extent so financed, the obligation
of such Borrower to make such payment shall be discharged and replaced by the resulting Base Rate
Borrowing. If the applicable Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from such
Borrower in respect thereof and such Lender’s Pro Rata Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Administrative Agent its Pro Rata Percentage
of the payment then due from such Borrower, in the same manner as provided in Section 2.02(c) with
respect to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the LC Issuer the amounts so received by it from the Lenders. Promptly following
receipt by the Administrative Agent of any payment from the applicable Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the LC Issuer or, to the
extent that Lenders have made payments pursuant to this paragraph to reimburse the LC Issuer, then
to such Lenders and the LC Issuer as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the LC Issuer for any LC Disbursement (other












 



32



than the
funding of Base Rate Standby Loans as contemplated above) shall not
constitute a Loan and shall not relieve the applicable Borrower of its obligation to reimburse
such LC Disbursement.




          (f) Obligations Absolute. The obligation of the applicable Borrower to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances, including the following:





     (i) any lack of validity or enforceability of any Letter of Credit, this Agreement,
or any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that any
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any person for whom any such beneficiary or any such transferee
may be acting), the LC Issuer or any other person, whether in connection with this
Agreement, the transactions contemplated hereby or by any Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under any 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 any
Letter of Credit;




     (iv) any payment by the LC Issuer under any Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;
or any payment made by the LC Issuer under any 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 any 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, any Borrower or any Subsidiary.



          (g) Role of LC Issuer. Each Lender and each Borrower agrees that, in making any LC
Disbursement, the LC 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 LC Issuer, the Administrative Agent, any of their respective
Affiliates, any













 



33



partners, directors, officers, employees, agents and advisors of the foregoing nor
any correspondent, participant or assignee of the LC 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 wilful 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 each 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 LC
Issuer, the Administrative Agent, any of their respective Affiliates, any partners, directors,
officers, employees, agents and advisors of the foregoing nor any correspondent, participant or
assignee of the LC Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.06(f); provided, however, that anything in such clauses to the
contrary notwithstanding, the applicable Borrower may have a claim against the LC Issuer, and the
LC 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 by the LC Issuer’s wilful misconduct or gross negligence or the LC Issuer’s wilful
failure to pay under any Letter of Credit issued for its account after the presentation to it by
the beneficiary of a sight draft and any certificate strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the LC
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, and the LC 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.




          (h) Disbursement Procedures. The LC Issuer shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit. The
LC Issuer shall promptly notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the LC Issuer has made or will make
an LC Disbursement thereunder; provided that any failure to give or delay in giving such
notice shall not relieve such Borrower of its obligation to reimburse the LC Issuer and the Lenders
with
respect to any such LC Disbursement at the time it is required to do so under paragraph (e) of
this Section.




          (i) Interim Interest. If the LC Issuer shall make any LC Disbursement, then, unless the
applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date on
which such LC Disbursement is made to but excluding the date on which such Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to Base Rate Standby Loans; provided that,
if such Borrower fails to reimburse such LC Disbursement (including with the proceeds of a Base
Rate Borrowing) at the time required under paragraph (e) of this Section, then Section 2.10












 



34



shall
apply. Interest accrued pursuant to this paragraph shall be for the account of the LC Issuer,
except that interest accrued on and after the date of payment by any Lender pursuant to paragraph
(e) of this Section to reimburse the LC Issuer shall be for the account of such Lender to the
extent of such payment.




          (j) Replacement of the LC Issuer. The LC Issuer may be replaced at any time by written
agreement among the Company, the Administrative Agent, the replaced LC Issuer and the successor LC
Issuer. The Administrative Agent shall notify the Lenders of any such replacement of the LC
Issuer. At the time any such replacement shall become effective, each Borrower shall pay all
unpaid fees accrued for the account of the replaced LC Issuer pursuant to Section 2.07(c). From
and after the effective date of any such replacement, (i) the successor LC Issuer shall have all
the rights and obligations of the LC Issuer under this Agreement with respect to Letters of Credit
to be issued thereafter and (ii) references herein to the term “LC Issuer” shall be deemed to refer
to such successor or to any previous LC Issuer, or to such successor and all previous LC Issuers,
as the context shall require. After the replacement of an LC Issuer hereunder, the replaced LC
Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an
LC Issuer under this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.




          (k) Cash Collateralization. If any Event of Default under clause (b) or (c) of Article VI
shall occur and be continuing, or if the Administrative Agent, at the request of the Required
Lenders, shall have accelerated the maturity of the Loans pursuant to Article VI, then, on the
Business Day that the applicable Borrower receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the applicable Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to (i) the LC Exposure as of such date plus any accrued and unpaid
interest thereon minus (ii) any amount of the LC Exposure secured by Collateral on deposit in any
LC Security Account, but only to the extent the aggregate Collateral Value of such Collateral is at
least equal to such amount of the LC Exposure; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to any Borrower described in clause (g) or (h) of Article VI. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance of the obligations
of the applicable Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other than
any interest earned on the investment of such deposits, which investments shall be made in money
market investments at the option and sole discretion of the Administrative Agent and at the risk
and expense of the applicable Borrower, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the LC Issuer for LC Disbursements for
which it has not been reimbursed and, to the extent













 



35



not so applied, shall be held for the
satisfaction of the reimbursement obligations of the applicable Borrower for the LC Exposure at
such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the applicable Borrower under this Agreement. If the applicable
Borrower is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to such Borrower within three Business Days after all Events of Default have been cured or
waived.




          (l) Applicability of ISP and UCP. Unless otherwise expressly agreed by the LC Issuer and the
applicable Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.




          (m) Conflict with Letter of Credit Applications. Notwithstanding anything else to the
contrary in this Agreement, in the event of any conflict between the terms and conditions hereof
and the terms and conditions of any Letter of Credit Application or other agreement
submitted by the applicable Borrower to, or entered into by the applicable Borrower with, the
LC Issuer related to any Letter of Credit, the terms and conditions hereof shall control. No
provision of any Letter of Credit Application shall have the effect of imposing on the Company any
obligations in respect of the reimbursement of LC Disbursements in excess of those set forth in
this Agreement.




          (n) Letter of Credit Issued for Subsidiaries. The Company unconditionally and irrevocably
agrees that, in connection with any Letter of Credit requested by it for the account of any
Subsidiary under Section 2.06(a), the Company will be fully responsible for the reimbursement of LC
Disbursements, the payment of interest thereon and the payment of LC Participation Fees and other
fees due under Section 2.07(c) to the same extent as if it were the sole account party in respect
of such Letter of Credit requested by it (the Company hereby irrevocably waiving any defense that
might otherwise be available to it as a guarantor of the obligations of any Subsidiary that shall
be a joint account party in respect of any such Letter of Credit). The Company acknowledges that
the issuance of such Letters of Credit inures to the benefit of the Company, and that the business
of the Company derives substantial benefits from the business of each such Subsidiary.




          (o) Secured Letters of Credit. The Company may from time to time designate any Letter of
Credit issued at its request for the account of a Subsidiary (as contemplated by paragraph (a) of
this Section) as a Secured Letter of Credit by written notice to the Administrative Agent and the
LC Issuer; provided that at the time of or prior to such designation (A) the Company shall have
executed and delivered to the Administrative Agent the Secured Letter of Credit Agreement and (B)
the Company shall have caused the applicable Subsidiary to (1) execute and deliver to the
Administrative Agent a Joinder Agreement under which it shall become a party to the Secured Letter
of Credit Agreement and (2) deliver, pursuant to the Secured Letter of











 



36



Credit Agreement and for
deposit in such LC Security Account as the Administrative Agent shall specify, as security for the
reimbursement of LC Disbursements under such Secured Letter of Credit and the payment of accrued
interest thereon, Collateral with an aggregate Collateral Value at least equal to 110% of the
portion of the LC Exposure attributable to such Secured Letter of Credit. If any drawing shall be
made under a Secured Letter of Credit then, unless the applicable Subsidiary (or the Company) shall
have reimbursed such LC Disbursement directly, the Administrative Agent shall liquidate Collateral
deposited by such Subsidiary in the applicable LC Security Account and apply the proceeds thereof
to reimburse the LC Issuer or the Lenders, as the case may be, for such LC Disbursement and any
interest accrued thereon; provided that the Company shall remain fully obligated for any portion of
any such LC Disbursement for which the LC
Issuer or the Lenders shall not be reimbursed through the application of Collateral or
proceeds thereof as provided herein, whether as a result of any insufficiency of such Collateral,
any defect in the rights of the Administrative Agent with respect thereto or otherwise.




          SECTION 2.07. Fees. (a) The Company agrees to pay to the Administrative Agent for the
account of each Lender a facility fee (the “Facility Fee”), which shall accrue at the Applicable
Percentage from time to time in effect on the daily amount of the Commitment of such Lender
(whether used or unused) during the period from and including the Original Closing Date to but
excluding the date on which such Commitment terminates; provided that, if such Lender continues to
have any Standby Credit Exposure after its Commitment terminates, then such Facility Fee shall
continue to accrue on the daily amount of such Lender’s Standby Credit Exposure from and including
the date on which its Commitment terminates to but excluding the date on which such Lender ceases
to have any Standby Credit Exposure. Accrued Facility Fees shall be payable in arrears on the last
Business Day of March, June, September and December of each year, commencing on the first such date
to occur after the Original Closing Date, and on the date on which the Commitments shall have
terminated and the Lenders shall have no further Standby Credit Exposures. All Facility Fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).




          (b) For any day on which the sum of the Standby Credit Exposures and the Competitive Loan
Exposures shall be greater than 50% of the Total Commitment (and for any day after the termination
of all the Commitments on which Loans or Letters of Credit shall be outstanding), the Borrowers
shall pay to the Administrative Agent for the account of each Lender a usage fee (the “Usage Fee”)
at the Applicable Percentage from time to time in effect on the aggregate Dollar Equivalents of
such Lender’s outstanding Loans and LC Exposure on such day. Accrued and unpaid Usage Fees, if
any, shall be payable on the last Business Day of each March, June, September and December and on
the date on which the Commitments shall have terminated and the Lenders shall have no Standby
Credit Exposures or Competitive Loan Exposures. All Usage Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).











 



37




          (c) Each Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a participation fee with respect to such Lender’s participations in Letters of Credit
issued at the request of such Borrower (the “LC Participation Fee”), accruing at the Applicable
Percentages applicable to such Letters of Credit on the daily amounts of such
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) attributable to such Letters of Credit during the period from and including the
Original Effective Date to but excluding the later of the date on which such Lender’s Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the LC
Issuer (A) a fronting fee, which shall accrue at the rate or rates per annum separately agreed upon
between the Borrowers and the LC Issuer on the average daily amount of the LC Exposure attributable
to Letters of Credit issued at the request of such Borrower (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Original
Effective Date to but excluding the later of the date of termination of the Commitments and the
date on which there ceases to be any LC Exposure, and (B) the LC Issuer’s standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit issued at the
request of such Borrower or processing of drawings thereunder. LC Participation Fees and fronting
fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March, June, September and December, commencing on the first
such date to occur after the Original Effective Date; provided that all such fees shall be payable
on the date on which the Commitments terminate and any such fees accruing after the date on which
the Commitments terminate shall be payable on demand. Any other fees payable to the LC Issuer
pursuant to this paragraph shall be payable on demand. All LC Participation Fees and fronting fees
shall be computed on the basis of a year of 360 days, and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).




          (d) The Company agrees to pay to the Administrative Agent, for its own account, the
administrative and other fees separately agreed to by the Company and such Agent (the
“Administrative Fees”).




          (e) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the
Administrative Fees shall be paid pursuant to paragraph (d) above. Once paid, none of the Fees
shall be refundable under any circumstances.




          SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby agrees that
the outstanding principal balance of each Standby Loan or Local Currency Loan shall be payable on
the Maturity Date (unless an earlier date is specified in the Local Currency Addendum relating to
such Local Currency Loan) and that the outstanding principal balance of each Competitive Loan shall
be payable on the last day of the Interest Period
applicable thereto. Each Loan shall bear interest on the outstanding principal balance
thereof as set forth in Section 2.09.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness to such Lender resulting from each Loan











 



38



made by such Lender from time
to time, including the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.




          (c) The Administrative Agent shall (i) maintain accounts in which it will record (A) the
amount of each Loan made hereunder, the currency of each Loan, the Borrower of each Loan, the Type
of each Loan made and the Interest Period applicable thereto; (B) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each Lender hereunder;
and (C) the amount of any sum received by the Administrative Agent hereunder from each Borrower and
each Lender’s share thereof and (ii) provide a summary to the Company in writing on a quarterly
basis.




          (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) of this
Section 2.08 shall, to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrowers to repay the Loans in accordance with their
terms.




          SECTION 2.09. Interest on Loans. (a) Subject to the provisions of Section 2.10, the Loans
comprising each Eurocurrency Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i) in the case of
each Eurocurrency Standby Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage from time to time in effect; (ii) in the case of each Eurocurrency
Competitive Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus the
Margin offered by the Lender making such Loan and accepted by the applicable Borrower pursuant to
Section 2.03; and (iii) in the case of each Eurocurrency Local Currency Loan, the LIBO Rate for the
Interest Period in effect for such Loan plus any spread specified in the applicable Local Currency
Addendum (or, if no such spread shall be specified, the Applicable Percentage from time to time in
effect).




          (b) Subject to the provisions of Section 2.10, the Loans comprising each Base Rate Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as
the case may be, for periods during which the Base Rate is determined by reference to the
Prime Rate and 360 days for other periods) at a rate per annum equal to the Base Rate.




          (c) Subject to the provisions of Section 2.10, each Fixed Rate Loan shall bear interest at a
rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days)
equal to the fixed rate of interest offered by the Lender making such Loan and accepted by the
applicable Borrower pursuant to Section 2.03.




          (d) Subject to the provisions of Section 2.10, any Local Currency Loan that is not a
Eurocurrency Loan shall bear interest at the rate or rates per annum set forth in the applicable
Local Currency Addendum.











 



39




          (e) Interest on each Loan shall be payable in arrears on each Interest Payment Date
applicable to such Loan except as otherwise provided in this Agreement or in an applicable Local
Currency Addendum. The applicable LIBO Rate or Base Rate for each Interest Period or day within an
Interest Period, as the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.




          SECTION 2.10. Default Interest. If a Borrower shall default in the payment of the principal
of or interest on any Loan or any other amount becoming due hereunder, whether by scheduled
maturity, notice of prepayment, acceleration or otherwise, such Borrower shall on demand from time
to time from the Administrative Agent pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed as provided in Section 2.09(b)) equal to the Base Rate plus
2% per annum (or, in the case of Local Currency Loans, such other rate as may be specified in the
applicable Local Currency Addendum).




          SECTION 2.11. Alternate Rate of Interest. In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any Interest Period for a Eurocurrency
Borrowing, the Administrative Agent shall have commercially reasonably determined (i) that deposits
in the currency and principal amounts of the Eurocurrency Loans comprising such Borrowing are not
generally available in the London interbank market or (ii) that reasonable means do not exist for
ascertaining the LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give
telecopy notice of such determination to the applicable Borrower and the Lenders. In the event of
any such determination under clauses (i) or (ii) above, until the Administrative Agent shall have
advised the applicable Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, (x) any request by a Borrower for a Eurocurrency Competitive Loan pursuant to Section 2.03
shall be of no force and effect and shall be denied by the Administrative Agent, (y) any request by
a Borrower for a Eurocurrency Standby Loan pursuant to Section 2.04(a) shall be deemed to be a
request for a Base Rate Borrowing and (z) any request for a Eurocurrency Local Currency Loan
pursuant to Section 2.04(b) and to a Local Currency Addendum shall be deemed to be a request for a
Local Currency Loan bearing interest by reference to the rate specified in the applicable Local
Currency Addendum (provided that if the requested Eurocurrency Local Currency Loan was to be made
pursuant to a Local Currency Addendum in which no rate is specified such request shall be of no
force and effect and shall be denied by the Administrative Agent). In the event the Required
Lenders notify the Administrative Agent that the rates at which Dollar deposits are being offered
will not adequately and fairly reflect the cost to such Lenders of making or maintaining
Eurocurrency Loans in Dollars during such Interest Period, the Administrative Agent shall notify
the applicable Borrower of such notice and until the Required Lenders shall have advised the
Administrative Agent that the circumstances giving rise to such notice no longer exist, any request
by any Borrower for a Eurocurrency Standby Loan shall be deemed a request for a Base Rate
Borrowing. Each determination by the Administrative Agent hereunder shall be made in good faith
and shall be conclusive absent manifest error.











 



40




          SECTION 2.12. Termination and Reduction of Commitments. (a) The Commitments shall be
automatically terminated on the Maturity Date.




          (b) Upon at least three Business Days’ prior irrevocable telecopy notice to the
Administrative Agent, the Company may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Total Commitment; provided, however, that (i) each partial
reduction of the Total Commitment shall be in an integral multiple of $10,000,000 and in a minimum
principal amount of $50,000,000 and (ii) no such termination or reduction shall be made (A) which
would reduce the Total Commitment to an amount less than the sum of the aggregate Standby Credit
Exposures and the Competitive Loan Exposures or (B) which would reduce any Lender’s Commitment to
an amount that is less than such Lender’s Standby Credit Exposure.




          (c) Each reduction in the Total Commitment hereunder shall be made ratably among the Lenders
in accordance with their respective Commitments. The Borrowers shall pay to the Administrative
Agent for the account of the Lenders, on the date of each reduction or termination of the Total
Commitment, the Facility Fees on the amount of the Commitments terminated accrued through the date
of such termination or reduction.




          SECTION 2.13. Prepayment. (a) Each Borrower shall have the right at any time and from time
to time to prepay any Standby Borrowing or Local Currency Borrowing, as the case may be, in whole
or in part, upon giving telecopy notice (or telephone notice promptly confirmed by telecopy) to the
Administrative Agent: (i) before 10:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of Eurocurrency Standby Loans; (ii) before 10:00 a.m., New York City time,
one Business Day prior to prepayment, in the case of Base Rate Standby Loans; and (iii) in the case
of Local Currency Loans, by such time as shall be specified in the applicable Local Currency
Addendum; provided, however, that each partial prepayment shall be in an amount which is (x) in the
case of any Standby Borrowing, an integral multiple of $10,000,000 and not less than $50,000,000,
and (ii) in the case of any Local Currency Borrowing, an amount in which prepayments are permitted
to be made under the applicable Local Currency Addendum. No prepayment may be made in respect of
any Competitive Borrowing.




          (b) On the date of any termination or reduction of the Commitments pursuant to Section 2.12,
the Borrowers shall pay or prepay so much of the Standby Borrowings as shall be necessary in order
that the sum of the Competitive Loan Exposures and Standby Credit Exposures will not exceed the
Total Commitment, after giving effect to such termination or reduction.




          (c) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
applicable Borrower to prepay such Borrowing (or portion thereof) by the amount stated therein on
the date stated therein. All prepayments under this Section 2.13 shall be subject to Section 2.16
but otherwise without premium or












 



41



penalty. All prepayments of Eurocurrency Standby Loans shall be
accompanied by accrued interest on the principal amount being prepaid to the date of payment.




          SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the Original Closing Date any change
in applicable law or regulation or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof (whether or not
having the force of law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with or for the account
of or credit extended by any Lender or the LC Issuer, or shall result in the imposition on (i) any
Lender or the LC Issuer or the London interbank market of any other condition affecting this
Agreement; (ii) such Lender’s Commitment; or (iii) any Eurocurrency Loan or Fixed Rate
Loan made by such Lender or any Letter of Credit or participation therein, and the result of
any of the foregoing shall be to increase the cost to such Lender of making or maintaining any
Eurocurrency Loan or Fixed Rate Loan or to increase the cost to such Lender or the LC Issuer of
participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the LC Issuer hereunder (whether of principal, interest or
otherwise) by an amount reasonably deemed by such Lender or the LC Issuer, as the case may be, to
be material, then such additional amount or amounts as will compensate such Lender or the LC
Issuer, as the case may be, for such additional costs or reduction will be paid by the Borrowers to
such Lender or the LC Issuer upon demand. Notwithstanding the foregoing, no Lender shall be
entitled to request compensation under this paragraph with respect to any Competitive Loan if the
change giving rise to such request was applicable to such Lender at the time of submission of the
Competitive Bid pursuant to which such Competitive Loan was made.




          (b) If any Lender or the LC Issuer shall have determined that the adoption of any law, rule,
regulation or guideline arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled “International Convergence of Capital Measurement
and Capital Standards”, or the adoption after the Original Closing Date of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any lending office of such Lender) or the LC Issuer or the holding company of
such Lender or the LC Issuer with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on (i) the capital of such Lender, the LC Issuer or
the holding company of such Lender or the LC Issuer, as the case may be, as a consequence of this
Agreement; (ii) such Lender’s Commitment; or (iii) the Loans made by or participations in Letters
of Credit held by such Lender, or the Letters of Credit issued by the LC Issuer, pursuant hereto to
a level below that which such Lender, the LC Issuer or the holding company of such Lender or the LC
Issuer, as the case may be, could have achieved but for such adoption, change or compliance (taking
into consideration such Lender’s or the LC Issuer’s policies and the policies of the holding
company of such Lender or the LC Issuer with respect to capital












 



42



adequacy) by an amount reasonably
deemed by such Lender or the LC Issuer, as the case may be, to be material, then from time to time
such additional amount or amounts as will compensate such Lender or the LC Issuer or the holding
company of such Lender or the LC Issuer for such
reduction will be paid by the Borrowers to such Lender or the LC Issuer, as the case may be.




          (c) A certificate of any Lender or the LC Issuer setting forth such amount or amounts as
shall be necessary to compensate such Lender or the LC Issuer or its holding company, as
applicable, as specified in paragraph (a) or (b) above, as the case may be, shall be delivered to
the Company and shall be conclusive absent manifest error. The Borrowers shall pay such Lender or
the LC Issuer, as the case may be, the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.




          (d) Failure on the part of any Lender or the LC Issuer to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender’s or the LC Issuer’s right
to demand compensation with respect to such period or any other period; provided, however, that
neither any Lender nor the LC Issuer shall be entitled to compensation under this Section 2.14 for
any costs incurred or reductions suffered with respect to any date unless it shall have notified
the Company that it will demand compensation for such costs or reductions under paragraph (c) above
not more than 90 days after the later of (i) such date and (ii) the date on which it shall have
become aware of such costs or reductions. The protection of this Section shall be available to
each Lender and the LC Issuer regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.




          SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision herein, if any
change in any law or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful for any Lender or
any of its Affiliates which shall be party to a Local Currency Addendum to make or maintain any
Eurocurrency Loan or Local Currency Loan or to give effect to its obligations as contemplated
hereby with respect to any Eurocurrency Loan or Local Currency Loan, or shall limit the
convertibility into Dollars of any Local Currency (or make such conversion commercially
impracticable), then, by written notice to the Company and to the Administrative Agent, such Lender
may:





     (i) declare that Eurocurrency Loans or Loans in any affected Local Currency will not
thereafter be made by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for a Eurocurrency Competitive Loan, any request
for a Eurocurrency Standby Loan shall, as to such Lender only,
be deemed a request for a Base Rate Loan, and any request for a Local Currency
Borrowing in such Local Currency shall be disregarded, unless such declaration shall be
subsequently withdrawn; and




 










 



43




     (ii) require that all outstanding Eurocurrency Loans in Dollars made by it be
converted to Base Rate Loans and that all outstanding Local Currency Loans made by it in
the affected Local Currency be promptly prepaid, in which event all such Eurocurrency Loans
in Dollars shall be automatically converted to Base Rate Loans as of the effective date of
such notice as provided in paragraph (b) below and all such Local Currency Loans shall be
promptly prepaid.



In the event any Lender shall exercise its rights under subparagraph (i) or (ii) above with respect
to Eurocurrency Loans in Dollars, all payments and prepayments of principal which would otherwise
have been applied to repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans, of such Lender shall instead be applied to repay the Base Rate Loans
made by such Lender in lieu of, or resulting from the conversion of, such Eurocurrency Loans.



          (b) For purposes of this Section 2.15, a notice by any Lender shall be effective as to each
Eurocurrency Loan or Local Currency Loan, if lawful, on the last day of the Interest Period
currently applicable to such Eurocurrency Loan or Local Currency Loan; in all other cases such
notice shall be effective on the date of receipt.




          SECTION 2.16. Indemnity. The Borrowers shall indemnify each Lender against any out-of-pocket
loss or expense which such Lender sustains or incurs as a consequence of (a) any failure to borrow
or to refinance, convert or continue any Loan hereunder after irrevocable notice of such borrowing,
refinancing, conversion or continuation has been given pursuant to Section 2.03, 2.04 or 2.05 or
pursuant to any Local Currency Addendum; (b) any payment, prepayment or conversion, or assignment
required under Section 2.21, of a Eurocurrency Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day of the Interest
Period, if any, applicable thereto; (c) any default in payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued thereon, as and when due and payable (at
the due date thereof, whether by scheduled maturity, acceleration, irrevocable notice of prepayment
or otherwise); or (d) the occurrence of any Event of Default, including, in each such case, any
loss or reasonable expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurocurrency Loan or Local Currency Loan. Such loss or reasonable expense shall include an
amount equal to the excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed (assumed to be the
LIBO Rate applicable thereto) for the period from the date of such payment, prepayment, refinancing
or failure to borrow or refinance to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow or refinance the
Interest Period for such Loan which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be realized by such Lender
in reemploying the funds so paid, prepaid or not borrowed or refinanced for such period or Interest
Period, as the case may be. A certificate of any Lender setting forth any amount or amounts which
such Lender is entitled to receive pursuant to this Section shall be delivered to such Borrower and
shall be conclusive absent manifest error.










 



44




          SECTION 2.17. Pro Rata Treatment. Except as required under Sections 2.15 and 2.21, (a) each
payment or prepayment of principal of any Standby Borrowing, each refinancing or conversion of any
Standby Borrowing with a Standby Borrowing of any Type and each payment of interest on the Standby
Loans comprising any Standby Borrowing shall be allocated pro rata among the Lenders in accordance
with the respective principal amounts of the Loans made by them as part of such Borrowing, (b) each
payment to reimburse Lenders’ participations in LC Disbursements shall be allocated pro rata among
the Lenders in accordance with the respective amounts of their participations in such LC
Disbursements, (c) each payment of the Facility Fees and each reduction of the Commitments shall be
allocated pro rata among the Lenders in accordance with their respective Commitments, (d) each
payment of the LC Participation Fees shall be allocated pro rata among the Lenders in accordance
with their respective LC Exposures pursuant to the terms of Section 2.07(c), and (e) each payment
of the Usage Fees shall be allocated pro rata among the Lenders in accordance with the amounts of
their respective Loans and LC Exposures. Each payment of principal of any Competitive Borrowing
shall be allocated pro rata among the Lenders participating in such Borrowing in accordance with
the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing.
Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Competitive Loans comprising such Borrowing. Each Lender agrees that
in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or
lower whole Dollar amount.




          SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim, or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Standby Loan or Loans or participations in LC Disbursements as a result of which the
unpaid principal portion of its Standby Loans or participations in LC Disbursements shall be
proportionately less than the unpaid principal portion of the Standby Loans or participations in LC
Disbursements of any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Standby Loans or participations in LC Disbursements of such other Lender, so
that the aggregate
unpaid principal amount of the Standby Loans and participations in LC Disbursements held by
each Lender, after giving effect to all such purchases, shall be in the same proportion to the
aggregate unpaid principal amount of all Standby Loans and participations in LC Disbursements then
outstanding as the principal amount of its Standby Loans and participations in LC Disbursements
prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans and participations in LC Disbursements outstanding prior to such
exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the










 



45




payment giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Any Lender holding a participation deemed to have been so
purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to
any and all moneys owing to such Lender by reason thereof as fully as if such Lender had made a
Standby Loan, or acquired participation in a LC Disbursement, in the amount of such participation.



          SECTION 2.19. Payments. (a) The Borrowers shall make each payment (including principal of or
interest on any Borrowing and any Fees or other amounts) hereunder from an account in the United
States not later than 12:00 noon, local time at the place of payment, on the date when due, without
setoff or counterclaim, in immediately available funds to the Administrative Agent at its offices
at 2001 Clayton Road, 2nd Floor, Concord, California 94521 (or, in the case of Local Currency
Loans, such other time and place as shall be specified in the applicable Local Currency Addendum),
except payments to be made directly to the LC Issuer as expressly provided herein and payments
pursuant to Sections 2.14, 2.16, 2.20 and 9.05 shall be made directly to the persons entitled
thereto. Each such payment (other than principal of and interest on Local Currency Loans which
shall be made in the Local Currency of such Local Currency Loan) shall be made in Dollars.




          (b) Except as otherwise set forth herein with respect to Eurocurrency Loans, whenever any
payment (including principal of or interest on any Borrowing or any Fees or other amounts)
hereunder shall become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.




          SECTION 2.20. Taxes. (a) Any and all payments to the Lenders, the LC Issuer and the
Administrative Agent hereunder shall be made, in accordance with Section 2.19, free and clear of
and without deduction for any and all current or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding (i) income taxes imposed on
the income of the Administrative Agent, the LC Issuer or any Lender (or any transferee or assignee
thereof, including a participation holder (any such entity a “Transferee”)) and (ii) franchise
taxes imposed on the income, assets or net worth of the Administrative Agent, the LC Issuer or any
Lender (or Transferee), in each case by the jurisdiction under the laws of which the Administrative
Agent, the LC Issuer or such Lender (or Transferee) is organized or doing
business (other than as a result of entering into this Agreement, performing any obligations
hereunder, receiving any payments hereunder or enforcing any rights hereunder), or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities, collectively or individually, “Taxes”). If any Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender (or any Transferee),
the LC Issuer or the Administrative Agent, (i) the sum payable shall be increased by the amount (an
“additional amount”) necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.20) such Lender











 



46




(or Transferee), the LC
Issuer or the Administrative Agent (as the case may be) shall receive 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, the Borrowers shall pay to the relevant Governmental Authority in accordance
with applicable law any current or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this Agreement or any other
Loan Document (“Other Taxes”).




          (c) The Borrowers shall indemnify each Lender (or Transferee), the LC Issuer and the
Administrative Agent for the full amount of Taxes and Other Taxes paid by such Lender (or
Transferee), the LC Issuer or the Administrative Agent, as the case may be, and any liability
(including penalties, interest and expenses (including reasonable attorneys’ fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by a Lender (or Transferee), the LC Issuer or the Administrative
Agent (on its own behalf or on behalf of a Lender or the LC Issuer), absent manifest error, shall
be final, conclusive and binding for all purposes. Such indemnification shall be made within 30
days after the date any Lender (or Transferee), the LC Issuer or the Administrative Agent, as the
case may be, makes written demand therefor, which written demand shall be made within 60 days of
the date such Lender (or Transferee), the LC Issuer or the Administrative Agent receives written
demand for payment of such Taxes or Other Taxes from the relevant Governmental Authority.




          (d) If a Lender (or Transferee), the LC Issuer or the Administrative Agent shall become aware
that it is entitled to claim a refund from a Governmental Authority in respect of Taxes or Other
Taxes as to which it has been indemnified by the Borrowers, or with respect to which the Borrowers
have paid additional amounts, pursuant to this Section 2.20, it shall promptly notify the Borrowers
of the availability of such refund claim and shall, within 30 days after receipt of a request by
the Borrowers, make a claim to such Governmental Authority for such refund at the Borrowers’
expense. If a Lender (or Transferee), the LC Issuer or the Administrative Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding sentence) in respect of
any Taxes or Other Taxes as to which it has been indemnified by the Borrowers or with
respect to which the Borrowers have paid additional amounts pursuant to this Section 2.20, it
shall within 30 days from the date of such receipt pay over such refund to the Borrowers (but only
to the extent of indemnity payments made, or additional amounts paid, by the Borrowers under this
Section 2.20 with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of such Lender (or Transferee), the LC Issuer or the Administrative Agent
and without interest (other than interest paid by the relevant Governmental Authority with respect
to such refund); provided, however, that the Borrowers, upon the request of such Lender (or
Transferee), the LC Issuer or the Administrative Agent, agree to repay the amount paid over to the










 



47




Borrowers (plus penalties, interest or other charges) to such Lender (or Transferee), the LC Issuer
or the Administrative Agent in the event such Lender (or Transferee), the LC Issuer or the
Administrative Agent is required to repay such refund to such Governmental Authority.



          (e) As soon as practicable after the date of any payment of Taxes or Other Taxes by the
Borrowers to the relevant Governmental Authority, the Borrowers will deliver to the Administrative
Agent, at its address referred to in Section 9.01, the original or a certified copy of a receipt
issued by such Governmental Authority evidencing payment thereof.




          (f) Without prejudice to the survival of any other agreement contained herein, the agreements
and obligations contained in this Section 2.20 shall survive the payment in full of the principal
of and interest on all Loans made hereunder.




          (g) Each Lender (or Transferee) that is organized under the laws of a jurisdiction other than
the United States, any State thereof or the District of Columbia (a “Non-U.S. Lender”) shall
deliver to the Company and the Administrative Agent two copies of either United States Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest”, a Form W-8BEN, or any subsequent versions thereof or successors
thereto (and, if such Non-U.S. Lender delivers a Form W-8BEN, a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Company and is not a
controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrowers under
this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder) and on or before
the date, if any, such Non-U.S. Lender changes its applicable lending office by designating a
different lending office (a “New Lending Office”). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Notwithstanding any other provision of this Section 2.20(g), a Non-U.S. Lender
shall not be required to deliver any
form pursuant to this Section 2.20(g) that such Non-U.S. Lender is not legally able to
deliver.




          (h) The Borrowers shall not be required to indemnify any Non-U.S. Lender, or to pay any
additional amounts to any Non-U.S. Lender, in respect of United States Federal withholding tax
pursuant to paragraph (a) or (c) above to the extent that (i) the obligation to withhold amounts
with respect to United States Federal withholding tax existed on the date such Non-U.S. Lender
became a party to this Agreement (or, in the case of a Transferee that is a participation holder,
on the date such participation holder became a Transferee hereunder) or, with respect to payments
to a New Lending










 



48




Office, the date such Non-U.S. Lender designated such New Lending Office with
respect to a Loan; provided, however, that this clause (i) shall not apply to any Transferee or New
Lending Office that becomes a Transferee or New Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Company; and provided further,
however, that this clause (i) shall not apply to the extent the indemnity payment or additional
amounts any Transferee, or Lender (or Transferee) through a New Lending Office, would be entitled
to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional
amounts that the person making the assignment, participation or transfer to such Transferee, or
Lender (or Transferee) making the designation of such New Lending Office, would have been entitled
to receive in the absence of such assignment, participation, transfer or designation or (ii) the
obligation to pay such additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (g) above.



          (i) Any Lender (or Transferee) claiming any indemnity payment or additional amounts payable
pursuant to this Section 2.20 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document reasonably requested in writing by the Company or
to change the jurisdiction of its applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any such indemnity payment or additional
amounts that may thereafter accrue and would not, in the determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or Transferee).




          (j) Nothing contained in this Section 2.20 shall require any Lender (or Transferee), the LC
Issuer or the Administrative Agent to make available any of its tax returns (or any other
information that it deems to be confidential or proprietary).




          SECTION 2.21. Duty to Mitigate; Assignment of Commitments Under Certain Circumstances. (a)
Any Lender (or Transferee) claiming any additional amounts payable pursuant to Section 2.14 or
Section 2.20 or exercising its rights under Section 2.15 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document requested by the
Company or to change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such additional amounts which
may thereafter accrue or avoid the circumstances giving rise to such exercise and would not, in the
determination of such Lender (or Transferee), be otherwise disadvantageous to such Lender (or
Transferee).




          (b) In the event that (i) any Lender shall have delivered a notice or certificate pursuant to
Section 2.14 or 2.15, (ii) the Company shall be required to make additional payments to any Lender
under Section 2.20 or (iii) any Lender shall have defaulted on its obligations to fund under
Section 2.06, failed to fund or pay any amount required to be funded or paid by it under this
Agreement or been deemed insolvent or become the subject of a bankruptcy of insolvency proceeding,
the Company (in the case of clauses (i) and (ii)) and the Company or the LC Issuer (in the case of
clause (iii)) shall have the right, upon notice to such Lender and the Administrative Agent, to
require such










 



49




Lender to transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 9.04) all interests, rights and obligations contained hereunder
to another financial institution which shall assume such obligations; provided that (i) no such
assignment shall conflict with any law, rule or regulation or order of any Governmental Authority
and (ii) the assignee or the Borrowers, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans made, and participations in LC Disbursements acquired, by it
hereunder and all other amounts accrued for its account or owed to it hereunder.



          SECTION 2.22. Terms of Local Currency Facilities. (a) The Company may in its discretion from
time to time elect to borrow, or elect that one or more Borrowing Subsidiaries may borrow, Local
Currency Loans on a revolving basis from any one or more Local Currency Lenders, with the consent
of each such Local Currency Lender in its sole discretion, by delivering a Local Currency Addendum
to the Administrative Agent and the applicable Local Currency Lenders (through the Administrative
Agent), executed by the Company, each such Borrowing Subsidiary and each such Local Currency
Lender; provided, however, that on the effective date of such election, and after giving effect
thereto, (i) an Exchange Rate with respect to each Local Currency covered by such Local Currency
Addendum shall be determinable by reference to the Reuters currency pages (or comparable publicly
available screen); (ii) no Default or Event of Default shall have occurred and be continuing; and
(iii) the aggregate amount of all Local Currency Facility Maximum Borrowing Amounts under all Local
Currency Addenda at the time in effect shall not exceed $350,000,000. Each Borrower and, by
agreeing to any Local Currency Addendum, each relevant Local Currency Lender, acknowledges and
agrees that each reference in this Agreement to any Lender shall, to the extent applicable, be
deemed to be a reference to such Local Currency Lender, subject to the second sentence of the
definition of such term.




          (b) Each Local Currency Addendum shall set forth (i) the maximum amount (expressed in Dollars
and without duplication) available to be borrowed from all Local Currency Lenders under such Local
Currency Addendum (as the same may be reduced from time to time pursuant to Section 2.23(c) or (d),
a “Local Currency Facility Maximum Borrowing Amount”) and (ii) with respect to each Local Currency
Lender party to such Local Currency Addendum, the maximum amount (expressed in Dollars and without
duplication) available to be borrowed from such Local Currency Lender
thereunder (as the same may be reduced from time to time pursuant to Section 2.23(c) or (d), a
“Local Currency Lender Maximum Borrowing Amount”). In no event shall the aggregate of all Local
Currency Lender Maximum Borrowing Amounts in respect of any Local Currency Lender at any time
exceed such Lender’s Commitment. Except as provided in Section 2.22(c), the making of Local
Currency Loans by a Local Currency Lender under a Local Currency Addendum shall under no
circumstances reduce the amount available to be borrowed from such Lender under any other Local
Currency Addendum to which such Lender is a party.




          (c) Except as otherwise required by applicable law, in no event shall the Local Currency
Lenders have the right to accelerate the Local Currency Loans










 



50




outstanding under any Local Currency
Addendum, or to terminate their commitments (if any) thereunder to make Local Currency Loans prior
to the stated termination date in respect thereof, except that such Local Currency Lenders shall,
in each case, have such rights upon an acceleration of the Loans and a termination of the
Commitments pursuant to Article VI, respectively. No Local Currency Loan may be made if (i) an
Exchange Rate with respect to such Local Currency cannot be determined; (ii) a Default or an Event
of Default shall have occurred and be continuing or would result therefrom; or (iii) after giving
effect thereto, (A) the Standby Credit Exposure of any Lender (and the Affiliates of such Lender
that are Local Currency Lenders) then outstanding would exceed such Lender’s Commitment, (B) the
Dollar Equivalent of the aggregate principal amount of outstanding Local Currency Loans denominated
in a specified Local Currency would exceed the applicable Local Currency Facility Maximum Borrowing
Amount, or (C) the sum of the aggregate Standby Credit Exposures and the aggregate Competitive Loan
Exposures would exceed the Total Commitment.



          (d) The applicable Borrower and the applicable Local Currency Lenders, or, if so specified in
the relevant Local Currency Addendum, an agent acting on their behalf, shall furnish to the
Administrative Agent, promptly following the making, payment or prepayment of each Local Currency
Loan, and at any other time at the request of the Administrative Agent, a statement setting forth
the outstanding Local Currency Loans made under such Local Currency Addendum.




          (e) The applicable Borrower shall furnish to the Administrative Agent copies of any amendment,
supplement or other modification to the terms of any Local Currency Addendum promptly after the
effectiveness thereof.




          (f) The Company may terminate any Local Currency Addendum, if there are not any Loans
outstanding thereunder, in its sole discretion (or, if there are Loans outstanding thereunder, with
the consent of each Local Currency Lender party thereto), by written notice to the Administrative
Agent, which notice shall be executed by each relevant Borrower and, if their consent is required,
each such Local Currency Lender. Once notice of such termination is received by the Administrative
Agent, such Local Currency Addendum and the loans and other obligations outstanding thereunder
shall immediately cease to be subject to the terms of this Agreement.




          SECTION 2.23. Currency Fluctuations, etc. (a) Not later than 1:00 p.m., New York City time,
on each Calculation Date, the Administrative Agent shall (i) determine the Exchange Rate as of such
Calculation Date with respect to each Local Currency covered by a Local Currency Addendum and (ii)
give notice thereof to the Lenders, each relevant Borrower and the Company. The Exchange Rates so
determined shall become effective on the first Business Day immediately following the relevant
Calculation Date (a “Reset Date”) and shall remain effective until the next succeeding Reset Date.




          (b) Not later than 5:00 p.m., New York City time, on each Reset Date and each Borrowing Date,
the Administrative Agent shall (i) determine the Dollar Equivalent of the Local Currency Loans then
outstanding (after giving effect to any Local Currency










 



51




Loans to be made or repaid on such date) and
(ii) notify the Lenders, the relevant Borrowers and the Company of the results of such
determination.



          (c) If, on any Reset Date or any Borrowing Date (after giving effect to (i) any Loans to be
made or repaid on such date and (ii) any amendment, supplement or other modification to any Local
Currency Addendum effective on such date of which the Administrative Agent has received notice),
the aggregate outstanding Dollar Standby Extensions of Credit of any Lender exceeds the Dollar
Standby Credit Overage of such Lender (the amount of such excess being called the “Dollar Standby
Credit Excess”), then such Lender’s Local Currency Lender Maximum Borrowing Amount under each Local
Currency Addendum to which such Lender is a party shall be reduced on such date by an amount equal
to the product of such Dollar Standby Credit Excess times a fraction the numerator of which shall
equal the Local Currency Lender Maximum Borrowing Amount under such Local Currency Addendum and the
denominator of which shall equal the aggregate of the Local Currency Lender Maximum Borrowing
Amounts of such Lender. After giving effect to any such reduction in Local Currency Lender Maximum
Borrowing Amounts, the Local Currency Facility Maximum Borrowing Amount with respect to each Local
Currency Addendum shall in turn be reduced to an amount equal to the aggregate of the Local
Currency Lender Maximum Borrowing Amounts of all Lenders party to such Local Currency Addendum.
Reductions in Local Currency Facility Maximum Borrowing Amounts and Local Currency Lender Maximum
Borrowing Amounts pursuant to this Section 2.23(c) shall be effective until the amount thereof
shall be recalculated by the Administrative Agent on the next succeeding Reset Date or Borrowing
Date, and shall not be deemed to reduce the stated amount of any commitment of any Local Currency
Lender in respect of any Local Currency Addendum.




          (d) If, on any Reset Date or Borrowing Date (after giving effect to (i) any Loans to be made
or repaid on such date, (ii) any amendment, supplement or other modification to any Local Currency
Addendum effective on such date of which the Administrative Agent has received notice and (iii) any
reduction in the Local Currency Facility Maximum Borrowing Amounts pursuant to Section 2.23(c)
effective on such date), the sum of (A) the aggregate outstanding Dollar Standby Extensions of
Credit of all the Lenders and (B) the aggregate Competitive Loan Exposures exceed the Dollar
Facility Overage (the amount of such excess being called the “Dollar Facility Excess”), then the
Local Currency Facility Maximum Borrowing Amount under each Local
Currency Addendum shall be reduced on such date by an amount equal to the product of such
Dollar Facility Excess times a fraction the numerator of which shall equal the Local Currency
Facility Maximum Borrowing Amount under such Local Currency Addendum and the denominator of which
shall equal the aggregate of the Local Currency Facility Maximum Borrowing Amounts with respect to
all Local Currency Addenda. Each such reduction in the Local Currency Facility Maximum Borrowing
Amount under a Local Currency Addendum shall in turn reduce the respective Local Currency Lender
Maximum Borrowing Amounts of each Local Currency Lender party to such Local Currency Addendum, pro
rata on the basis of the respective Local Currency Lender Maximum Borrowing Amounts of such Local
Currency Lenders immediately prior to such reduction. Reductions in Local Currency Facility
Maximum Borrowing Amounts and Local Currency Lender Maximum Borrowing Amounts pursuant to this










 



52




Section 2.23(d) shall be effective until the amount thereof shall be recalculated by the
Administrative Agent on the next succeeding Reset Date or Borrowing Date, and shall not be deemed
to reduce the stated amount of any commitment of any Local Currency Lender in respect of any Local
Currency Addendum.



          (e) If, on any Reset Date, the Dollar Equivalent of the Local Currency Loans outstanding under
a Local Currency Addendum exceeds 105% of the Local Currency Facility Maximum Borrowing Amount with
respect thereto (after giving effect to any reductions therein effected pursuant to Section 2.23(c)
or (d) on such date), then the relevant Borrowers shall, within three Business Days after notice
thereof from the Administrative Agent, (i) increase the Local Currency Facility Maximum Borrowing
Amount with respect to such Local Currency Facility in accordance with Section 2.22(e) and/or (ii)
prepay Local Currency Loans, in either case in an aggregate amount such that, after giving effect
thereto, (x) the Dollar Equivalent of all such Local Currency Loans shall be equal to or less than
such Local Currency Facility Maximum Borrowing Amount and (y) the Dollar Equivalent of the Local
Currency Loans of each relevant Local Currency Lender shall be equal to or less than such Local
Currency Lender’s Local Currency Lender Maximum Borrowing Amount with respect to such Local
Currency Addendum.




          (f) If, on any Reset Date, the Standby Credit Exposure of any Lender exceeds 105% of such
Lender’s Commitment, then, within three Business Days after notice thereof from the Administrative
Agent, the relevant Borrowers shall prepay the Loans in accordance with this Agreement, in an
aggregate amount such that, after giving effect thereto, the Standby Credit Exposure of such Lender
shall be equal to or less than such Lender’s Standby Credit Commitment.




          (g) The Administrative Agent shall promptly notify the relevant Lenders of the amount of any
reductions in Local Currency Facility Maximum Borrowing Amounts or Local Currency Lender Maximum
Borrowing Amounts required pursuant to this Section 2.23.




          SECTION 2.24. Increase in Total Commitment. (a) The Company may from time to time, by
written notice to the Administrative Agent (which shall deliver a copy thereof to each Lender),
request that the Total Commitment be increased by an
amount not to exceed the Incremental Facility Amount at such time. Such notice shall set
forth the amount of the requested increase in the Total Commitment (which shall be an integral
multiple of $10,000,000) and the date on which such increase is requested to become effective
(which shall not be less than 10 Business Days or more than 60 days after the date of such notice),
and shall offer to each Lender the opportunity to increase its Commitment by its Pro Rata
Percentage of the proposed increased amount. Each Lender shall, by notice to the Company and the
Administrative Agent given not more than 10 days after the date on which the Administrative Agent
shall have delivered the Company’s notice, either agree to increase its Commitment by all or a
portion of the offered amount (each
Lender so agreeing being an “Increasing Lender”) or decline to
increase its Commitment (and any Lender that does not deliver such notice within such period of 10
days shall be deemed to have declined to increase its Commitment) (each










 



53




Lender so declining or
being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day
after the Administrative Agent shall have delivered the Company’s notice, the Lenders shall have
agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less
than the increase in the Total Commitment requested by the Company, the Company may arrange for one
or more banks or other financial institutions (any such bank or other financial institution
referred to in this clause (a) being called an “Augmenting Lender”), which may include any Lender,
to extend Commitments or increase their existing Commitments in an aggregate amount equal to the
unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agent and the Company and each Augmenting Lender
shall execute all such documentation as the Administrative Agent shall specify to evidence its
Commitment and/or its status as a Lender hereunder. Any increase in the Total Commitment may be
made in an amount which is less than the increase requested by the Company if the Company is unable
to arrange for, or chooses not to arrange for, Augmenting Lenders.



          (b) On the effective date (the “Increase Effective Date”) of any increase in the Total
Commitment pursuant to this Section 2.24 (the “Commitment Increase”), (i) the aggregate principal
amount of the Standby Loans outstanding (the “Initial Loans”) immediately prior to giving effect to
the Commitment Increase on the Increase Effective Date shall be deemed to be paid; (ii) each
Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the Commitment
Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference
between (A) the product of (1) such Lender’s Pro Rata Percentage (calculated after giving effect to
the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter
defined) and (B) the product of (1) such Lender’s Pro Rata Percentage (calculated without giving
effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans; (iii) each
Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to
the Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting
Lender’s Pro Rata Percentage (calculated after giving effect to the Commitment Increase) multiplied
by (2) the amount of the Subsequent Borrowings; (iv) after the Administrative Agent receives the
funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each
Non-Increasing Lender the portion of such funds that is equal to the difference between (A) the
product of (1) such Non-Increasing Lender’s Pro Rata Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of
the Initial Loans, and (B) the product of (1) such Non-Increasing Lender’s Pro Rata Percentage
(calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings; (v) after the effectiveness of the Commitment Increase, the Company shall be
deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount
equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest
Periods specified in a borrowing request delivered in accordance with Section 2.04; (vi) each
Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold
its Pro Rata Percentage of each Subsequent Borrowing (each calculated after giving effect to the
Commitment Increase); and (vii) the Company shall pay each Increasing Lender and each
Non-Increasing Lender any and all accrued but unpaid










 



54




interest on the Initial Loans. The deemed
payments made pursuant to clause (i) above in respect of each Eurocurrency Loan shall be subject to
indemnification by the Company pursuant to the provisions of Section 2.16 if the Increase Effective
Date occurs other than on the last day of the Interest Period relating thereto.



          (c) Notwithstanding the foregoing, no increase in the Total Commitment (or in the Commitment
of any Lender) or addition of a new Lender shall become effective under this Section 2.24 unless,
(i) on the Increase Effective Date, the conditions set forth in paragraphs (b) and (c) of Section
4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Financial Officer of the Company; (ii) no reduction of the
Total Commitment shall have occurred prior to the Increase Effective Date; and (iii) the
Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents
consistent with those delivered on the Original Effective Date under clauses (a) and (b) of Section
4.02 as to the corporate power and authority of the Borrowers to borrow hereunder after giving
effect to such increase.




ARTICLE III




Representations and Warranties




          Each Borrower represents and warrants to each of the Lenders that:




          SECTION 3.01. Organization; Powers. Each Borrower and each of the Restricted Subsidiaries (a)
is a corporation duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be conducted; (c) is
qualified to do business in every jurisdiction where such qualification is required, except where
the failure so to qualify would not result in a Material Adverse Effect; and (d) in the case of
each Borrower, has the corporate power and authority to execute, deliver and perform its
obligations under the Loan Documents and to borrow hereunder and thereunder.




          SECTION 3.02. Authorization. The execution, delivery and performance by the Borrowers of this
Agreement and any promissory notes issued pursuant to
Section 9.04(i) and each Local Currency Addendum (and by the Borrowing Subsidiaries of each
Borrowing Subsidiary Agreement) and the Borrowings and the issuances of Letters of Credit hereunder
(collectively, the “Transactions”) (a) have been duly authorized by all requisite corporate action
and (b) will not (i) violate (A) any provision of any law, statute, rule or regulation (including
the Margin Regulations) or of the certificate of incorporation or other constitutive documents or
by-laws of the Borrowers; (B) any order of any Governmental Authority; or (C) any provision of any
indenture, agreement or other instrument to which any Borrower is a party or by which it or any of
its property is or may be bound, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such indenture, agreement or
other instrument, or (iii) result in the creation or imposition of any lien upon any property or
assets of any Borrower.










 



55




          SECTION 3.03. Enforceability. This Agreement and each Loan Document to which a Borrower is a
party constitutes a legal, valid and binding obligation of each such Borrower, enforceable in
accordance with its terms.




          SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or other action by any Governmental Authority, other than those which have been taken,
given or made, as the case may be, is or will be required with respect to any Borrower in
connection with the Transactions.




          SECTION 3.05. Financial Statements. (a) The Company has heretofore furnished to the
Administrative Agent and the Lenders copies of its consolidated balance sheet and statements of
income, cash flow and stockholders’ equity as of and for the year ended December 31, 2005 and the
nine months ended September 30, 2006. Such financial statements present fairly, in all material
respects, the consolidated financial condition and the results of operations of the Company and the
Subsidiaries as of such dates and for such periods in accordance with GAAP or SAP, as applicable.




          (b) As of the Restatement Effective Date, there has been no material adverse change in the
consolidated financial condition of the Company and the Subsidiaries taken as a whole from the
financial condition reported in the financial statements referenced in paragraph (a) of this
Section 3.05.




          SECTION 3.06. Litigation; Compliance with Laws. (a) Except as disclosed on Schedule 3.06 or
in the Company’s public filings with the SEC prior to the date hereof, there are no actions,
proceedings or investigations filed or (to the knowledge of the Borrowers) threatened against any
Borrower or any Subsidiary in any court or before any Governmental Authority or arbitration board
or tribunal which question the validity or legality of this Agreement, the Transactions or any
action taken or to be taken pursuant to this Agreement and no order or judgment has been issued or
entered restraining or enjoining any Borrower or any Subsidiary from the execution, delivery or
performance of this Agreement nor is there any other action, proceeding or investigation filed or
(to the knowledge of any Borrower or any Subsidiary) threatened against any Borrower or any
Subsidiary in any court or before any Governmental Authority or arbitration board or tribunal which
would be reasonably likely to result in a Material
Adverse Effect or materially restrict the ability of any Borrower to comply with its
obligations under the Loan Documents.




          (b) Neither any Borrower nor any Subsidiary is in violation of any law, rule or regulation
(including any law, rule or regulation relating to the protection of the environment or to employee
health or safety), or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default would be reasonably likely to result in a
Material Adverse Effect.




          (c) No exchange control law or regulation materially restricts any Borrower from complying
with its obligations in respect of any Loan or otherwise under this Agreement or any Local Currency
Addendum.










 



56




          SECTION 3.07. Federal Reserve Regulations. (a) Neither any Borrower nor any Subsidiary that
will receive proceeds of the Loans hereunder is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying Margin
Stock.




          (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry Margin Stock or to refund
indebtedness originally incurred for such purpose, or for any other purpose which entails a
violation of, or which is inconsistent with, the provisions of the Margin Regulations.




          SECTION 3.08. Investment Company Act. No Borrower is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940 (the “1940 Act”). While certain
subsidiaries of Hartford Life Insurance Company are “investment companies” as defined in the 1940
Act, the transactions contemplated by this Agreement will not violate or require any approval under
such Act or any regulations promulgated pursuant thereto.




          SECTION 3.09. Use of Proceeds. All proceeds of the Loans and the Letters of Credit shall be
used for the purposes referred to in the recitals to this Agreement.




          SECTION 3.10. Full Disclosure; No Material Misstatements . No report, financial statement,
other written information or other information transmitted orally during a formal presentation,
furnished by or on behalf of any Borrower to the Administrative Agent or any Lender pursuant to
this Agreement or in connection with the arrangement, syndication and closing of the credit
facilities established hereby, contains or will contain any material misstatement of fact or omits
or will omit to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were or will be made, not misleading.




          SECTION 3.11. Taxes. Each Borrower and each of the Restricted Subsidiaries have filed or
caused to be filed all Federal, state and local tax returns which are required to be filed by them,
and have paid or caused to be paid all taxes shown to be due and payable on such returns or on any
assessments received by any of them, other
than any taxes or assessments the validity of which is being contested in good faith by
appropriate proceedings, and with respect to which appropriate accounting reserves have to the
extent required by GAAP or SAP, as applicable, been set aside.




          SECTION 3.12. Employee Pension Benefit Plans. The present aggregate value of accumulated
benefit obligations of all unfunded and underfunded pension plans of the Company and its
Subsidiaries (based on those assumptions used for disclosure in corporate financial statements in
accordance with GAAP) did not, as of December 31, 2004, exceed by more than $473,000,000 the value
of the assets of all such plans. In these cases the Company has recorded book reserves to meet the
obligations.










 



57




ARTICLE IV




Conditions of Lending




          SECTION 4.01. All Credit Events. The obligation of each Lender to make Loans and of the LC
Issuer to issue, amend, renew or extend Letters of Credit hereunder (each, a “Credit Event”) is
subject to the satisfaction of the following conditions:





     (a) On the date of each Credit Event, the Administrative Agent shall have received a
notice of such Credit Event as required by Section 2.03, Section 2.04 or Section 2.06, as
applicable.




     (b) On the date of each Credit Event, the representations and warranties set forth in
Article III hereof (other than the representations and warranties set forth in Section
3.05(b) and Section 3.06(a) and (b)) shall be true and correct in all material respects on
and as of the date of such Credit Event with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly relate to an
earlier date.




     (c) At the time of and immediately after such Credit Event, no Event of Default or
Default shall have occurred and be continuing.



Each Credit Event shall be deemed to constitute a representation and warranty by each Borrower on
the date thereof as to the matters specified in paragraphs (b) and (c) of this Section 4.01.



          SECTION 4.02. Original Effective Date. The obligations of the Lenders to make Loans and of
the LC 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 9.02):




          (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 a favorable written opinion of Richard G.
Costello, Esq., dated the Original Effective Date and addressed to the Lenders, to the effect set
forth in Exhibit C hereto.




          (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrowers and the authorization of the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.










 



58




          (d) All loans and other amounts outstanding or accrued for the accounts of the lenders under
each of the Existing Credit Agreements (whether or not due at the time) shall have been paid in
full and the commitments under each of the Existing Credit Agreements shall have been terminated.




          (e) The Administrative Agent and the Lenders shall have received all fees due and payable on
or prior to the Original Effective Date required to be paid by the Borrowers in connection with
this Agreement, as set forth in the fee letter entered into in connection with the credit
facilities established hereby.




          SECTION 4.03. First Borrowing by Each Borrowing Subsidiary. The obligation of each Lender to
make Loans to any Borrowing Subsidiary shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section 9.02):




          (a) the Administrative Agent and each Lender shall have received, not less than 10 days prior
to the date of the first proposed Borrowing by such Borrowing Subsidiary, a copy of the Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary.




          (b) The Administrative Agent and each Lender shall have received (i) all documentation and
other information related to such Borrowing Subsidiary required by the Administrative Agent and
each Lender under applicable “know your customer” or similar identification rules and regulations,
including the USA Patriot Act, and (ii) such other documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization, existence and good
standing of such Borrowing Subsidiary and the authorization of the Transactions insofar as they
relate to such Borrowing Subsidiary, all in form and substance satisfactory to the Administrative
Agent and its counsel.




          SECTION 4.04. Restatement Effectiveness. This Agreement shall become effective as of the
first date (the “Restatement Effective Date”) on which:





     (a) the Administrative Agent shall have received counterparts hereof duly executed and
delivered by each of the Borrowers and the Required Lenders;




     (b) the Administrative Agent shall have received a favorable written opinion of
Richard G. Costello, Esq., dated the Restatement Effective Date and addressed to the
Lenders, to the effect set forth in Exhibit C hereto;




     (c) the Administrative Agent shall have received such documents and certificates as
the Administrative Agent may reasonably request relating to the organization, existence and
good standing of each Borrower, the authorization of the Agreement and the transactions
contemplated hereby and any other legal matters relating to the Borrower, the Loan
Documents, the Agreement or the transactions contemplated hereby, all in form and substance
reasonably satisfactory to the Administrative Agent;









 



59



     (d) any outstanding Loans made to Hartford Life and other amounts outstanding or
payable by Hartford Life under the Original Credit Agreement shall have been paid in full;




     (e) all Letters of Credit issued on behalf of Hartford Life shall have expired, been
terminated or been modified to add the Company as a co-applicant;




     (f) all Letters of Credit issued on behalf of Subsidiary (other than Hartford Life)
and for which Hartford Life is a co-applicant shall have expired, been terminated or been
modified to replace Hartford Life with the Company as a co-applicant; and




     (g) the Administrative Agent shall have received payment of all reasonable fees and
out-of-pocket expenses, to the extent invoiced, to be paid or reimbursed to it by the
Borrowers pursuant to the Agreement including the reasonable fees, charges and
disbursements of counsel.



ARTICLE V




Covenants




          A. Affirmative Covenants. Each Borrower covenants and agrees with each Lender and the
Administrative Agent that so long as any Commitments hereunder remain in effect, any principal of
or interest on any Loan remains outstanding and unpaid, any Letter of Credit remains outstanding,
any LC Disbursement remains unreimbursed or any Fees or any other amounts payable hereunder remain
unpaid, unless the Required Lenders shall otherwise consent in writing, it will, and will cause
each of the Subsidiaries to:




          SECTION 5.01. Existence. Do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, except as expressly permitted
under Section 5.10; provided, however, that nothing in this Section shall prevent the abandonment
or termination of the existence, rights or franchises of any Restricted Subsidiary or any rights or
franchises of any Borrower if such abandonment or termination is in the best interests of the
Borrowers and is not disadvantageous in any material respect to the Lenders.




          SECTION 5.02. Business and Properties. In the case of the Borrowers and the Restricted
Subsidiaries, comply in all material respects with all applicable laws, rules, regulations and
orders of any Governmental Authority (including any of the foregoing relating to the protection of
the environment or to employee health and safety), whether now in effect or hereafter enacted; and
at all times maintain and preserve all property material to the conduct of its business and keep
such property in good repair, working order and condition and from time to time make, or cause to
be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be properly conducted
at all times.










 



60




          SECTION 5.03. Financial Statements, Reports, etc. In the case of the Company, furnish to the
Administrative Agent, with sufficient copies (or with an electronic copy) to be distributed by the
Administrative Agent to each Lender:





     (a) within 90 days after the end of each fiscal year, its consolidated balance sheet
and the related consolidated statements of income and cash flows showing its consolidated
financial condition as of the close of such fiscal year and the consolidated results of its
operations during such year, all audited by Deloitte & Touche LLP or other independent
certified public accountants of recognized national standing selected by the Company and
accompanied by an opinion of such accountants to the effect that such consolidated
financial statements fairly present its financial condition and results of operations on a
consolidated basis in accordance with GAAP or SAP, as applicable (it being agreed that the
requirements of this paragraph may be satisfied by the delivery pursuant to paragraph (e)
below of an annual report on Form 10-K containing the foregoing);




     (b) within 60 days after the end of each of the first three fiscal quarters of each
fiscal year, its consolidated balance sheet and related consolidated statements of income
and cash flows showing its consolidated financial condition as of the close of such fiscal
quarter and the consolidated results of its operations during such fiscal quarter and the
then elapsed portion of the fiscal year, all certified by one of its Financial Officers as
fairly presenting its financial condition and results of operations on a consolidated basis
in accordance with GAAP or SAP, as applicable, subject to normal year-end audit adjustments
(it being agreed that the requirements of this paragraph may be satisfied by the delivery
pursuant to paragraph (e) below of a quarterly report on Form 10-Q containing the
foregoing);




     (c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer (A) certifying that (1) no Event of Default or
Default has occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (2) to such Financial Officer’s knowledge, as of the date of such
certificate, S&P does not classify the aggregate principal amount of Consumer Notes as
financial leverage of the Company or a Subsidiary and (B) setting forth (1) each Standard
Letter of Credit
and Secured Letter of Credit outstanding as of the end of such fiscal year or fiscal
quarter and (2) each item of Collateral on deposit in each LC Security Account, and the
Collateral Value thereof, as of the end of such fiscal year or fiscal quarter;




     (d) as soon as available and in any event within 90 days after the end of each fiscal
year and, in the case of clause (ii), within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, (i) the Statement of Actuarial Opinion of each
of the Restricted Subsidiaries for such fiscal year as filed with the Applicable Insurance
Regulatory Authority and (ii) the Annual Statement or Quarterly Statement, as applicable,
of each of the Restricted Subsidiaries for such fiscal year or fiscal quarter as filed with
the Applicable Insurance Regulatory









 



61


Authority, together with, in the case of the statements
delivered pursuant to clause (ii) above, a certificate of a Financial Officer to the effect
that such statements present fairly the statutory assets, liabilities, capital and surplus,
results of operations and cash flows of such Insurance Subsidiary in accordance with SAP;




     (e) promptly after the same become publicly available, copies of all reports on forms
10-K, 10-Q and 8-K filed by it with the SEC, or any Governmental Authority succeeding to
any of or all the functions of the SEC, or, in the case of the Company, copies of all
reports distributed to its shareholders, as the case may be;




     (f) promptly, from time to time, such other information as any Lender shall reasonably
request through the Administrative Agent; and




     (g) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, calculations of the financial tests referred to in Sections 5.13 and 5.14.



          Information required to be delivered pursuant to this Section 5.03 shall be deemed to have
been delivered to the Lenders on the date on which the Company provides written notice to the
Administrative Agent that such information has been posted on the Company’s website on the Internet
at http://www.thehartford.com or is available on the website of the SEC at http://www.sec.gov (to
the extent such information has been posted or is available as described in such notice); provided
that the Company shall deliver paper copies of such information to any Lender that requests such
delivery within 5 Business Days after such request. Information required to be delivered pursuant
to this Section 5.03 may also be delivered by electronic communications pursuant to procedures
approved by the Administrative Agent.




          SECTION 5.04. Insurance. In the case of the Company and each Restricted Subsidiary, keep its
insurable properties adequately insured at all times by financially sound and reputable insurers,
and maintain such other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies similarly situated and
in the same or similar businesses (it being understood that the Company and the Restricted
Subsidiaries may
self-insure to the extent customary with companies similarly situated and in the same or
similar businesses).




          SECTION 5.05. Obligations and Taxes. In the case of the Company and each Restricted
Subsidiary, pay and discharge promptly when due all taxes, assessments and governmental charges
imposed upon it or upon its income or profits or in respect of its property, as well as all other
material liabilities, in each case before the same shall become delinquent or in default and before
penalties accrue thereon, unless and to the extent that the same are being contested in good faith
by appropriate proceedings and adequate reserves with respect thereto shall, to the extent required
by GAAP or SAP, as applicable, have been set aside.










 



62




          SECTION 5.06. Notices. Give the Administrative Agent, to be distributed by the Administrative
Agent to each Lender, prompt written notice of the following:





     (a) any Event of Default or Default, specifying the nature and extent thereof and the
action (if any) which is proposed to be taken with respect thereto; and




     (b) any change in any of the Ratings.



          SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Maintain financial
records in accordance with GAAP or SAP, as applicable, and, upon reasonable notice, at all
reasonable times, permit any authorized representative designated by the Administrative Agent to
visit and inspect the properties of the Company and of any Restricted Subsidiary and to discuss the
affairs, finances and condition of the Company and the Restricted Subsidiaries with a Financial
Officer of the Company and such other officers as the Company shall deem appropriate.




          SECTION 5.08. Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code and (b) furnish to the Administrative Agent and each Lender as
soon as possible after, and in any event within 30 days after any Responsible Officer of any
Borrower or any ERISA Affiliate knows that, any ERISA Event has occurred that, alone or together
with any other ERISA Event known to have occurred, could reasonably be expected to result in
liability of such Borrower in an aggregate amount exceeding $15,000,000 in any year, a statement of
a Financial Officer of such Borrower setting forth details as to such ERISA Event and the action,
if any, that such Borrower proposes to take with respect thereto.




          SECTION 5.09. Use of Proceeds. Use the proceeds of the Loans and the Letters of Credit only
for the purposes set forth in the preamble to this Agreement.




          B. Negative Covenants. Each Borrower covenants and agrees with each Lender and the
Administrative Agent that so long as any Commitments hereunder remain in effect, any principal of
or interest on any Loan remains outstanding and unpaid, any Letter of Credit remains outstanding,
any LC Disbursement remains unreimbursed or any Fees or any other amounts payable hereunder remain
unpaid, unless the Required
Lenders shall otherwise consent in writing, it will not, and will not cause or permit any of
the Subsidiaries to:




          SECTION 5.10. Consolidations, Mergers, and Sales of Assets. In the case of the Company and
the Restricted Subsidiaries, consolidate or merge with or into any other person or sell, lease or
transfer all or substantially all of its property and assets, or agree to do any of the foregoing,
unless (a) no Default or Event of Default has occurred and is continuing or would have occurred
immediately after giving effect thereto and (b) in the case of a consolidation or merger or
transfer of assets involving the Company and in which the Company is not the surviving corporation
or sells, leases or transfers all or substantially all of its property and assets, the surviving
corporation or










 



63




person purchasing, leasing or receiving such property and assets is organized in the
United States of America or a state thereof and agrees to be bound by the terms and provisions
applicable to the Company hereunder.



          SECTION 5.11. Limitations on Liens. Create, incur, assume or permit to exist any Lien on any
property or assets (including the capital stock of any Subsidiary) now owned or hereafter acquired
by it, or sell or transfer or create any Lien on any income or revenues or rights in respect
thereof; provided, however, that this covenant shall not apply to any of the following:





     (a) any Lien on any property or asset hereafter acquired, constructed or improved by
the Company or any Subsidiary which is created or assumed to secure or provide for the
payment of any part of the purchase price of such property or asset or the cost of such
construction or improvement, or any mortgage, pledge or other lien on any Lien on any
property or asset existing at the time of acquisition thereof; provided, however, that such
Lien shall not extend to any other property owned by the Company or any Subsidiary;




     (b) any Lien existing upon any property or asset of a company which is merged with or
into or is consolidated into, or substantially all the assets or shares of capital stock of
which are acquired by, the Company or a Subsidiary, at the time of such merger,
consolidation or acquisition; provided that such Lien does not extend to any other property
or asset, other than improvements to the property or asset subject to such Lien;




     (c) any pledge or deposit to secure payment of workers’ compensation or insurance
premiums, or in connection with tenders, bids, contracts (other than contracts for the
payment of money) or leases;




     (d) any pledge of, or other Lien upon, any assets as security for the payment of any
tax, assessment or other similar charge by any Governmental Authority or public body, or as
security required by law or governmental regulation as a condition to the transaction of
any business or the exercise of any privilege or right;




     (e) any Lien necessary to secure a stay of any legal or equitable process in a
proceeding to enforce a liability or obligation contested in good faith by the Company or a
Subsidiary or required in connection with the institution by the Company or a Subsidiary of
any legal or equitable proceeding to enforce a right or to obtain a remedy claimed in good
faith by the Company or a Subsidiary, or required in connection with any order or decree in
any such proceeding or in connection with any contest of any tax or other governmental
charge; or the making of any deposit with or the giving of any form of security to any
governmental agency or any body created or approved by law or governmental regulation in
order to entitle the Company or a Subsidiary to maintain self-insurance or to participate
in any fund in connection with workers’ compensation, unemployment insurance, old age
pensions or other social security or to share in









 



64



any provisions or other benefits provided
for companies participating in any such arrangement or for liability on insurance of
credits or other risks;




     (f) any mechanics’, carriers’, workmen’s, repairmen’s, or other like Liens, if arising
in the ordinary course of business, in respect of obligations which are not overdue or
liability for which is being contested in good faith by appropriate proceedings;




     (g) any Lien on property in favor of the United States of America, or of any agency,
department or other instrumentality thereof, to secure partial, progress or advance
payments pursuant to the provisions of any contract;




     (h) any Lien securing indebtedness of a Subsidiary to the Company or a Subsidiary;
provided that in the case of any sale or other disposition of such indebtedness by the
Company or such Subsidiary, such sale or other disposition shall be deemed to constitute
the creation of another Lien not permitted by this clause (h);




     (i) any Lien affecting property of the Company or any Subsidiary securing indebtedness
of the United States of America or a State thereof (or any instrumentality or agency of
either thereof) issued in connection with a pollution control or abatement program required
in the opinion of the Company to meet environmental criteria with respect to operations of
the Company or any Subsidiary and the proceeds of which indebtedness have financed the cost
of acquisition of such program;




     (j) the renewal, extension, replacement or refunding of any mortgage, pledge, lien,
deposit, charge or other encumbrance permitted by the foregoing provisions of this covenant
upon the same property theretofore subject thereto, or the renewal, extension, replacement
or refunding of the amount secured thereby; provided that in each case such amount
outstanding at that time shall not be increased;




     (k) Liens created under the Secured Letter of Credit Agreement; or




     (l) any other Lien; provided that immediately after the creation or assumption of such
Lien, the total of (x) the aggregate principal amount of Indebtedness of the Company and
all Subsidiaries (not including Indebtedness permitted under clauses (a) through (j) above)
secured by all Liens created or assumed under the provisions of this clause (l), plus (y)
the aggregate amount of Capitalized Lease-Back Obligations of the Company and Subsidiaries
under the entire unexpired terms of all leases entered into in connection with sale and
lease-back transactions which would have been precluded by the provisions of Section 5.12
but for the satisfaction of the condition set forth in clause (b) thereof, shall not exceed
an amount equal to 10% of the Consolidated Net Tangible Assets of the Company and its
consolidated Subsidiaries.









 



65


          SECTION 5.12. Limitations on Sale and Leaseback Transactions. Enter into any arrangement with
any person providing for the leasing by the Company or any Restricted Subsidiary of any property or
asset (except for temporary leases for a term of not more than three years and except for leases
between the Company and a Restricted Subsidiary or between Restricted Subsidiaries), which property
has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such
person more than 120 days after the acquisition thereof or the completion of construction and
commencement of full operation thereof, unless either (a) the Company shall apply an amount equal
to the greater of the Fair Value of such property or the net proceeds of such sale, within 120 days
of the effective date of any such arrangement, to the retirement (other than any mandatory
retirement or by way of payment at maturity) of Indebtedness or to the acquisition, construction,
development or improvement of properties, facilities or equipment used for operating purposes or
(b) at the time of entering into such arrangement, such property or asset could have been subjected
to a Lien securing Indebtedness of the Company or a Restricted Subsidiary in a principal amount
equal to the Capitalized Lease-Back Obligations with respect to such property or asset under
paragraph (l) of Section 5.11.




          SECTION 5.13. Consolidated Total Debt to Consolidated Total Capitalization. Permit the ratio
of (a) Consolidated Total Debt to (b) Consolidated Total Capitalization to be greater than 0.40 to
1.




          SECTION 5.14. Minimum Consolidated Statutory Surplus. Permit Consolidated Statutory Surplus
at the end of any fiscal quarter to be less than $7,600,000,000.




          SECTION 5.15. Limitation on Issuance of Consumer Notes. Permit the aggregate principal amount
of Consumer Notes outstanding at any time (a) from (and including) the First Amendment Effective
Date through (but excluding) the first anniversary of the First Amendment Effective Date, to exceed
$3,000,000,000, (b) from (and including) the first anniversary of the First Amendment Effective
Date through (but excluding) the second anniversary of the First Amendment Effective Date, to
exceed $4,000,000,000, (c) from (and including) the second anniversary of the First Amendment
Effective Date through (but excluding) the third anniversary of the First Amendment Effective Date,
to exceed $5,000,000,000 and (d) from (and including) the third
anniversary of the First Amendment Effective Date and thereafter, to exceed $6,000,000,000.




ARTICLE VI




Events of Default




          In case of the happening of any of the following events (each an “Event of Default”):





     (a) any representation or warranty made or deemed made under this Agreement, or any
written information or other information transmitted orally









 



66



during a formal presentation,
furnished by any Borrower or any Subsidiary to the Administrative Agent or the Lenders
pursuant to this Agreement or in connection with the arrangement, syndication or closing of
the facilities established hereby, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;




     (b) (i) default shall be made in the payment of 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 by acceleration thereof or otherwise, or (ii) default shall be
made in the payment of any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable and such default under this clause (ii) shall
continue unremedied for a period of three Business Days;




     (c) default shall be made in the payment of any interest on any Loan or any Fee or any
other amount (other than an amount referred to in paragraph (b) above) due hereunder, when
and as the same shall become due and payable, and such default shall continue unremedied
for a period of ten days;




     (d) default shall be made in the due observance or performance of any covenant,
condition or agreement contained in Section 5.01, 5.10, 5.11, 5.12, 5.13 or 5.14 or in any
Local Currency Addendum and, in the case of any default under Section 5.11, such default
shall continue for 30 days;




     (e) default shall be made in the due observance or performance of any covenant,
condition or agreement contained herein or in any other Loan Document (other than those
specified in clauses (b), (c) or (d) above) and such default shall continue unremedied for
a period of 30 days after notice thereof from the Administrative Agent or any Lender to the
Company;




     (f) the Company or any Subsidiary shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness in a principal amount in excess of
$100,000,000, when and as the same shall become due and payable (and in the case of
Consumer Notes, such failure shall continue unremedied for ten Business Days) or (ii) fail
to observe or perform any other term, covenant, condition or agreement contained in any
agreement or instrument
evidencing or governing any such Indebtedness if the effect of any failure referred to
in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or
a trustee on its or their behalf (with or without the giving of notice, the lapse of time
or both) to cause, such Indebtedness to become due prior to its stated maturity;
provided that, for purposes of this clause (f), the failure to pay principal or
interest in respect of, or observe or perform any other term, covenant, condition or
agreement applicable to, one tranche of Consumer Notes shall not, in and of itself,
constitute the failure to pay principal or interest in respect of, or observe or perform
any other term, covenant, condition or agreement applicable to, any other tranche of
Consumer Notes;









 



67



     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of the Company,
any Borrowing Subsidiary or any Restricted Subsidiary, or of a substantial part of the
property or assets of the Company, any Borrowing Subsidiary or any Restricted Subsidiary,
under Title 11 of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company, any Borrowing Subsidiary or any Restricted Subsidiary or for a
substantial part of the property or assets of the Company, any Borrowing Subsidiary or any
Restricted Subsidiary, or (iii) the winding up or liquidation of the Company, any Borrowing
Subsidiary or any Restricted Subsidiary; and 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; or any Governmental Authority having jurisdiction over the Company, any
Borrowing Subsidiary or any Restricted Subsidiary shall issue any order or commence any
proceeding for the conservation or administration of the Company, any Borrowing Subsidiary
or any Restricted Subsidiary or shall take any similar action;




     (h) the Company, any Borrowing Subsidiary or any Restricted Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of
any petition described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the
Company, any Borrowing Subsidiary or any Restricted Subsidiary or for a substantial part of
the property or assets of the Company, any Borrowing Subsidiary or any Restricted
Subsidiary, (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, (vi) become unable, admit in writing its inability or fail generally to pay its
debts as they become due, or (vii) take any action for the purpose of effecting any of the
foregoing;




     (i) one or more final judgments shall be entered by any court against the Company or
any of the Subsidiaries for the payment of money in an aggregate amount in excess of
$50,000,000, and such judgment or judgments shall not have been paid, discharged or stayed
for a period of 60 days, or a warrant of attachment or execution or similar process shall
have been issued or levied against property of the Company or any of the Subsidiaries to
enforce any such judgment or judgments;




     (j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other such ERISA Events, could reasonably be expected to
result in a Material Adverse Effect; or









 



68



     (k) a Change in Control shall occur;



then, and in every such event (other than an event with respect to the Company or any Restricted
Subsidiary described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall,
by notice to the Company, take either or both of the following actions, at the same or different
times: (i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrowers accrued hereunder, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived anything contained herein to the
contrary notwithstanding; and, in the case of any event with respect to the Company or any
Restricted Subsidiary described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder shall
automatically become due and payable, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived anything contained herein to the contrary
notwithstanding.



          After the exercise of remedies provided for in the foregoing paragraph, any amount received by
the Administrative Agent pursuant to the provisions of this Article VI shall be applied by the
Administrative Agent in the following order:




          First, to payment of fees, indemnities, expenses and other amounts (including fees, charges
and disbursements of counsel to the Administrative Agent) payable to the Administrative Agent in
its capacity as such;




          Second, to payment of fees, indemnities and other amounts (other than (i) principal of and
interest on Loans and unreimbursed LC Disbursements and (ii) the Facility Fees, the Usage Fees and
the LC Participation Fees) payable to the Lenders and the LC Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the LC Issuer), ratably among them in
proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of accrued and unpaid Facility Fees, Usage Fees and LC Participation Fees
and interest on the Loans and unreimbursed LC Disbursements, ratably among the Lenders and the LC
Issuer in proportion to the respective amounts described in this clause Third payable to them;




          Fourth, to payment of unpaid principal of the Loans and unreimbursed LC Disbursements, ratably
among the Lenders and the LC Issuer in proportion to the respective amounts described in this
clause Fourth held by them; and




          Last, the balance, if any, to the Borrowers or as otherwise required by law.










 



69




ARTICLE VII




Guarantee




          In order to induce the Lenders to extend credit to the Borrowing Subsidiaries hereunder, the
Company hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, of the Guaranteed
Obligations. The Company further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from it and that it will remain
bound upon its guarantee notwithstanding any extension or renewal of any Guaranteed Obligations.




          The Company waives presentment to, demand of payment from and protest to the Borrowing
Subsidiaries of any of the Guaranteed Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. The obligations of the Company hereunder shall not
be affected by (a) the failure of any Lender to assert any claim or demand or to enforce any right
or remedy against the Borrowing Subsidiaries under the provisions of this Agreement or otherwise;
(b) any rescission, waiver, amendment or modification of any of the terms or provisions of this
Agreement, any guarantee or any other agreement; (c) any law, regulation or order of any
jurisdiction, or any other event, affecting any term of any Guaranteed Obligation or any Lender’s
rights with respect thereto; or (d) the failure of any Lender to exercise any right or remedy
against any other guarantor of the Guaranteed Obligations. The Company hereby agrees that any
payments in respect of the Guaranteed Obligations pursuant to this Article VII will be paid to the
Administrative Agent without setoff or counterclaim, in Dollars (in the case of Guaranteed
Obligations arising under this Agreement) or, at the option of the relevant Local Currency
Lender(s), in Dollars or in the relevant Local Currency (in the case of Guaranteed Obligations
arising under any Local Currency Facility), at (a) the office of the Administrative Agent specified
in Section 2.19(a) (in the case of Guaranteed Obligations arising under this Agreement) or (b) at
the office specified for payments under the relevant Local Currency Addendum or such other office
as shall have been specified by the relevant Local Currency Lender(s) in each case to the extent
permitted by applicable law (in the case of Guaranteed Obligations arising under any Local Currency
Addendum).




          The Company further agrees that its guarantee constitutes a guarantee of payment when due and
not of collection, and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any security, if any, held for payment of the Guaranteed Obligations or to
any balance of any deposit account or credit on its books, in favor of the Borrowing Subsidiaries
or any other person.




          The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of
the Guaranteed Obligations or otherwise.







 



70





Without limiting the generality of the foregoing, the
obligations of the Company hereunder shall not be discharged or impaired or otherwise affected by
the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement, any guarantee or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, wilful or otherwise, in
the performance of the Guaranteed Obligations, or by any other act or omission which may or might
in any manner or to any extent vary the risk of the Company or otherwise operate as a discharge of
the Company as a matter of law or equity.



          To the extent permitted by applicable law, the Company waives any defense based on or arising
out of any defense available to the Borrowing Subsidiaries, including any defense based on or
arising out of any disability of the Borrowing Subsidiaries, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrowing Subsidiaries, other than final payment in full of the Guaranteed
Obligations. The Administrative Agent and the Lenders may, at their election, foreclose on any
security held by one or more of them by one or more judicial or non-judicial sales, or exercise any
other right or remedy available to them against the Borrowing Subsidiaries, or any security without
affecting or impairing in any way the liability of the Company hereunder except to the extent the
Guaranteed Obligations have been fully and finally paid. The Company waives any defense arising
out of any such election even though such election operates to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of the Company against the Borrowing
Subsidiaries or any security.




          The Company further agrees that its guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of principal of or interest on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Lender upon the bankruptcy
or reorganization of any Borrowing Subsidiary or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent or any Lender may have at law or in equity against the Company by virtue
hereof, upon the failure of any Borrowing Subsidiary to pay any Guaranteed Obligation when and as
the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to
and will, upon receipt of written demand by the Administrative Agent or any Lender, forthwith
pay or cause to be paid to the Administrative Agent or such Lender in cash the amount of such
unpaid Guaranteed Obligation.




          Until the termination of this Agreement and the commitments hereunder, and the repayment in
full of all amounts due under this Agreement, the Company hereby irrevocably waives and releases
any and all rights of subrogation, indemnification, reimbursement and similar rights which it may
have against or in respect of the Borrowing Subsidiaries at any time relating to the Guaranteed
Obligations, including all rights that would result in its being deemed a “creditor” of the
Borrowing Subsidiaries










 



71




under the United States Code as now in effect or hereafter amended, or any
comparable provision of any successor statute.



ARTICLE VIII




The Administrative Agent




          SECTION 8.01. Appointment and Authority. Each of the Lenders and the LC Issuer hereby
irrevocably appoints Bank of America, N.A. to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article VIII are solely for the benefit of the Administrative
Agent, the Lenders and the LC Issuer, and none of the Borrowers shall have rights as a third party
beneficiary of any of such provisions.




          SECTION 8.02. Rights as a Lender. The person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
person serving as the Administrative Agent hereunder in its individual capacity. Such person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with any of the Borrowers
or any Subsidiary or other Affiliate thereof as if such person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.




          SECTION 8.03. Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




          (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;




          (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and




          (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any of the Borrowers or any of their Affiliates that is










 



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communicated to or obtained by the person
serving as the Administrative Agent or any of its Affiliates in any capacity.



          The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Article VI and 9.07) or (ii) in the absence of
its own gross negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by a Borrower, a Lender or the LC Issuer.




          The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.




          SECTION 8.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the LC Issuer, the
Administrative Agent may presume that such condition is satisfactory to
such Lender or the LC Issuer unless the Administrative Agent shall have received notice to the
contrary from such Lender or the LC Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for
any of the Borrowers), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.




          SECTION 8.05. Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through its Affiliates and










 



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its or its Affiliates’ partners, directors, officers, employees, agents
and advisors. The exculpatory provisions of this Article shall apply to any such sub-agent and to
the Affiliates, partners, directors, officers, employees, agents and advisors of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facility provided for herein as well as activities as Administrative
Agent.



          SECTION 8.06. Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the LC Issuer and the Company. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the LC Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Company, the LC Issuer and the Lenders that no qualifying
person has accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the LC Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by any
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between such Borrower and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Article VIII and Section 9.05 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Affiliates and the
partners, directors, officers, employees, agents and advisors of any of the foregoing in respect of
any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was
acting as Administrative Agent.




          The resignation by Bank of America, N.A. as Administrative Agent pursuant to this Section
shall also constitute its resignation as LC Issuer. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring LC Issuer, (b) the
retiring LC Issuer shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor LC Issuer shall issue Letters










 



74




of
Credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the retiring LC Issuer to effectively assume
the obligations of the retiring LC Issuer with respect to such outstanding Letters of Credit.



          SECTION 8.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the LC
Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent,
any other Lender, any Affiliates of the Administrative Agent or any other Lender or any partners,
directors, officers, employees, agents and advisors of any of the foregoing and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the LC Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any other Lender, any Affiliate
of the Administrative Agent or any other Lender or any partners, directors, officers, employees,
agents and advisors of any of the foregoing and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.




          SECTION 8.08. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the syndication agents or the documentation agent shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed or sent by telecopy, as
follows:





     (i) if to any Borrower, to The Hartford Financial Services Group, Inc., Hartford
Plaza, Hartford, CT 06115, Attention of Mr. John Giamalis (Telecopy No. 860-547-2878); with
a copy to Mr. Richard G. Costello, The Hartford
Financial Services Group, Inc., Hartford Plaza, Hartford CT 06115 (Telecopy No.
860-723-4517);




     (ii) if to the Administrative Agent, (A) for payments and requests for credit
extensions, to Bank of America, N.A., 2001 Clayton Road, 2nd Floor, Mail Code
CA4-702-02-25, Concord, CA 94521, Attention of Petra Rubio (Telephone No. 925-675-8062;
Telecopy No. 888-969-9237; Electronic Mail Address: Petra.Rubio@bankofamerica.com), Ref:
The Hartford Financial Services Group, Inc., Account No. 003750836479, ABA# 111000012, and
(B) for all other notices, to Bank of America, N.A., Agency Management, 1455 Market Street,
5th Floor, Mail Code CA5-701-05-19, San Francisco, CA 94103, Attention of Aamir Saleem
(Telephone No. 415-436-2769; Telecopy No. 415-503-5089; Electronic









 



75



Mail Address:
Aamir.Saleem@bankofamerica.com), Ref: The Hartford Financial Services Group, Inc.;




     (iii) if to the LC Issuer, to Bank of America, N.A., Trade Operations, Los Angeles,
333 South Beaudry Avenue, Mail Code CA9-703-19-23, Los Angeles, CA 90017-1466, Attention of
Hermann Schutterle (Telephone No. 213-345-0397; Telecopy No. 213-345-6684; Electronic Mail
Address: Hermann.Schutterle@bankofamerica.com); and




     (iv) if to any other Lender, to it at its address (or telecopy number) set forth in
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender became a
party hereto.



All notices and other communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party given in accordance with this
Section.



          SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered to have been relied
upon by the Lenders and the LC Issuer and shall survive the making by the Lenders of the Loans or
the issuance by the LC Issuer of any Letters of Credit regardless of any investigation made by the
Lenders or the LC Issuer or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement is outstanding and unpaid, any Letter of Credit is outstanding or the Commitments
have not been terminated.




          SECTION 9.03. Binding Effect. This Agreement shall become effective on the Restatement
Effective Date when it shall have been executed by each Borrower and the Administrative Agent and
when the Administrative Agent shall have received copies hereof (telecopied or otherwise) which,
when taken together, bear the signature of each Lender, and thereafter shall be binding upon and
inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrowers shall not have
the right to assign any rights hereunder or any interest herein without the prior consent of all
the Lenders.




          SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors and assigns of such
party (including any Affiliate of the LC Issuer that issues any Letter of Credit); and all
covenants, promises and agreements by or on behalf of any party that are contained in this
Agreement shall bind and inure to the benefit of its successors and assigns (including any
Affiliate of the LC Issuer that issues any Letter of Credit).










 



76




          (b) Each Lender may assign to one or more assignees all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided, however, that (i) except in the case of an assignment to a Lender
or a Lender Affiliate, the Company (except when there exists a Default or an Event of Default) and
the Administrative Agent must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld); (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, and a processing and recordation
fee of $3,500; (iii) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and (iv) the amount of the Commitment of the assigning
Lender 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) shall not be less than
$5,000,000 and the amount of the Commitment of such Lender remaining after such assignment shall
not be less than $5,000,000 or shall be zero. Upon acceptance and recording pursuant to paragraph
(e) of this Section, from and after the effective date specified in each Assignment and Assumption,
which effective date shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto 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 (B)
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 or the remaining portion of an assigning Lender’s rights 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 2.14, 2.16, 2.20 and 9.05, as well as to any Fees
accrued for its account hereunder and not yet paid)). Notwithstanding the foregoing, any Lender
assigning its rights and obligations under this Agreement may retain any Competitive Loans made by
it outstanding at such time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance with this Agreement.




          (c) By executing and delivering an Assignment and Assumption, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned
thereby free and clear of any adverse claim; (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with this Agreement, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto or the financial condition of the
Borrowers or the performance or observance by the Borrowers of any obligations under this Agreement
or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and
warrants that it is legally authorized to enter into such Assignment and Assumption; (iv) such
assignee confirms that it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.03 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to










 



77




enter into
such Assignment and Assumption; (v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.



          (d) The Administrative Agent shall maintain at one of its offices in Charlotte, North Carolina
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 Commitment of, and the principal amount of the Loans
and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive in the absence of manifest error and
the Borrowers, the Administrative Agent, the LC Issuer 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. The Register shall be available for inspection by each party hereto,
at any reasonable time and from time to time upon reasonable prior notice.




          (e) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee together with an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and the written consent of the Company to such assignment,
the Administrative Agent shall (i) accept such Assignment and Assumption and (ii) record the
information contained therein in the Register.




          (f) Each Lender may sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided, however, 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; (iii) each participating bank or other entity shall be entitled to the
benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same
extent as if it were the selling Lender (and limited to the amount that could have been claimed by
the selling Lender had it continued to hold the interest of such participating bank or other
entity), except that all claims made pursuant to such Sections shall be made through such selling
Lender; and (iv) the Borrowers, the Administrative Agent, the LC Issuer and the other Lenders shall
continue to deal solely and directly with such selling Lender in connection with such Lender’s
rights and obligations under this Agreement.




          (g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section, disclose to










 



78




the assignee or
participant or proposed assignee or participant any information relating to the Borrowers furnished
to such Lender; provided that, prior to any such disclosure, each such assignee or participant or
proposed assignee or participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of any such
information.



          (h) The Borrowers shall not assign or delegate any rights and duties hereunder without the
prior written consent of all Lenders.




          (i) Any Lender may at any time pledge all or any portion of its rights under this Agreement to
a Federal Reserve Bank; provided that no such pledge shall release any Lender from its obligations
hereunder or substitute any such Bank for such Lender as a party hereto. In order to facilitate
such an assignment to a Federal Reserve Bank, each Borrower shall, at the request of the assigning
Lender, duly execute and deliver to the assigning Lender a promissory note or notes evidencing the
Loans made to such Borrower by the assigning Lender hereunder.




          SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree to pay all reasonable
out-of-pocket expenses (i) incurred by the Administrative Agent and Banc of America Securities LLC
in connection with the syndication of the credit facility provided for herein, the preparation,
execution, delivery and administration of this Agreement or in connection with any amendments,
modifications or waivers of the provisions hereof, (ii) incurred by the LC Issuer in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder or (iii) incurred by the Administrative Agent, the LC Issuer or any Lender in
connection with the enforcement or protection of their rights in connection with this Agreement or
in connection with the Loans made hereunder or under any Local Currency Addendum or Letters of
Credit issued hereunder, in each case including the reasonable fees and disbursements of counsel
for the Administrative Agent or, in the case of enforcement costs and documentary taxes, the
Lenders.




          (b) The Borrowers agree to indemnify the Administrative Agent, each Lender, each of their
Affiliates and the directors, officers, employees and agents of the foregoing (each such person
being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees and expenses, incurred by or asserted against any
Indemnitee arising out of (i) the consummation of the transactions contemplated by this Agreement;
(ii) the use of the proceeds of the Loans and Letters of Credit (including any refusal by the LC
Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit); or
(iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether
or not any Indemnitee is a party thereto and whether commenced by a third party or by a Borrower;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a final judgment of a
court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee.










 



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          (c) The provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the termination of any of the Letters of
Credit or reimbursement of any LC Disbursement, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the Administrative Agent,
the LC Issuer or any Lender. All amounts due under this Section shall be payable on written demand
therefor.




          SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




          SECTION 9.07. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
LC Issuer or any Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the LC Issuer and the Lenders hereunder are cumulative and are not exclusive of any rights
or remedies which they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on any Borrower or any
Subsidiary in any case shall entitle such party to any other or further notice or demand in similar
or other circumstances.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required
Lenders; provided, however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the payment of any
interest on any Loan or LC Disbursement or any Fee or other amount due hereunder or waive or excuse
any such payment or any part thereof, or decrease the rate of interest on any Loan, without the
prior written consent of each Lender affected thereby; (ii) increase the Commitment or
decrease any Fee or other amount owing to any Lender without the prior written consent of such
Lender; (iii) limit or release the guarantee set forth in Article VII; or (iv) amend or modify the
provisions of Section 2.17 or Section 9.04(h), the provisions of this Section or the definition of
the “Required Lenders”, without the prior written consent of each Lender; provided further,
however, that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the LC Issuer hereunder without the prior written consent of the
Administrative Agent or the LC Issuer, as applicable. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section and any consent by any Lender pursuant to this
Section shall bind any assignee of its rights and interests hereunder.




          SECTION 9.08. Entire Agreement. This Agreement and the agreements referred to in Section 2.07
constitute the entire contract among the parties relative to the










 



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subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof is superseded by
this Agreement. Nothing in this Agreement, expressed or implied, is intended to confer upon any
party other than the parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.



          SECTION 9.09. Severability. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.




          SECTION 9.10. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall constitute an original but all of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 9.03.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Lender to or for the
credit or obligations of any Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. Each Lender agrees promptly to notify the
applicable Borrower and the Administrative Agent after such setoff and application made by such
Lender, but the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which
such Lender may have.




          SECTION 9.13. Jurisdiction; Consent to Service of Process. (a) Each Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States of America sitting
in New York County, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, any Local Currency Addendum, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be










 



81




enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (b) below, nothing in this Agreement shall affect any
right that any party hereto may otherwise have to bring any action or proceeding relating to this
Agreement, any Local Currency Addendum against any other party hereto in the courts of any
jurisdiction.



          (b) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or thereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any Local
Currency Addendum in any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.




          (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. Each party
hereto (a) certifies that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of litigation, seek to
enforce the foregoing waiver and (b) acknowledges that it and other parties hereto have been
induced to enter into this Agreement by, among other things, the mutual waivers and certification
in this Section.




          SECTION 9.15. Addition of Borrowing Subsidiaries. Each Borrowing Subsidiary which shall
deliver to the Administrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary
and the Company shall, upon such delivery and
without further act, become a party hereto and a Borrower hereunder with the same effect as if
it had been an original party to this Agreement.




          SECTION 9.16. Conversion of Currencies. (a) If, for the purpose of obtaining judgment in any
court, it is necessary to convert a sum owing hereunder in one currency into another currency, each
party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the relevant
jurisdiction the first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.




          (b) The obligations of the Borrowers in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than










 



82




the currency in which such sum is
stated to be due hereunder (the “Agreement Currency”), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in
the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in
the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum originally due to the Applicable
Creditor in the Agreement Currency, the Borrowers agree, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrowers contained in this Section 9.16 shall survive the termination of this
Agreement and the payment of all other amounts owing hereunder.



          SECTION 9.17. Confidentiality. Each of the Administrative Agent and the Lenders, on behalf of
itself and its Affiliates and agents, agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates involved in the
preparation, execution, monitoring and administration of this Agreement and the transactions
contemplated thereby, and to such Lender’s and such Affiliates’ directors, officers, employees and
agents involved in the preparation, execution, monitoring and administration of this Agreement and
the transactions contemplated thereby, including accountants, legal counsel and other advisors (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, and
that the Administrative Agent and each Lender, as applicable, shall be responsible for compliance
with the provisions of this Section 9.17 by each of its Affiliates to which it discloses
Information under this clause (a) and each director, officer, employee and agent of any such
Affiliate); (b) to the extent requested by any regulatory or self-regulatory authority; (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process (it
being understood the Administrative Agent or the Lender, as applicable, shall notify the Company,
to the extent permitted by law, of such required disclosure within a reasonably practicable time
after such Agent or Lender gains knowledge of the required disclosure); (d) to any other party to
this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action
or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the same as those
of this Section, to any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations under this Agreement; (g) with the written consent
of the Company; or (h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section or (ii) is independently developed or received by a party
hereto without utilizing any Information received
from a Borrower or violating the terms of this
Section 9.17. For the purposes of this Section, “Information” means all confidential information,
including but not limited to all information provided during the Administrative Agent’s and
Lenders’ due diligence process regarding this Agreement, received from a Borrower relating to any
Borrower or any Subsidiary or any Borrower’s or any Subsidiary’s business other than any such
information that is “structure” or “tax aspects” of the transactions contemplated by this
Agreement, as such terms are used in Code sections 6011, 6111 or 6112, and the regulations
promulgated thereunder; provided that, in the case of information received










 



83




from a Borrower after
the Original Closing Date, 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. For the avoidance of doubt, the
Borrowers, the Administrative Agent and the Lenders agree that the Borrowers, the Administrative
Agent and the Lenders (and each of their Affiliates, their directors, officers, agents, attorneys,
employees and representatives) are permitted to disclose to any and all Persons, without limitation
of any kind, the “structure” and “tax aspects” of the transactions contemplated by this Agreement,
as such terms are used in Code sections 6011, 6111 or 6112, and the regulations promulgated
thereunder, and all materials of any kind (including opinions or other tax analyses) that are
provided to the Agent and the Lenders related to such structure and tax aspects. The preceding
sentence and clause in the definition of “Information” above are set forth herein solely to come
within certain “safe harbor” provisions set forth in certain temporary regulations promulgated
under Code sections 6011, 6111 and 6112.



          SECTION 9.18. USA Patriot Act. Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot 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 to identify the Borrowers in accordance with its
requirements.










 



84




          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.




	 	 	 	 	 	 	 	 	 
	 	 	THE HARTFORD FINANCIAL SERVICES GROUP, INC., as Borrower,
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	/s/ John N. Giamalis
 

	 	 
	 

	 	 	 	 	 	Name: John N. Giamalis	 	 
	 

	 	 	 	 	 	Title: Senior Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., individually, as LC Issuer and as
Administrative Agent,
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ Jason Cassity
 

	 	 
	 

	 	 	 	 	 	Name: Jason Cassity	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For purposes of Section 9.07(b) only:
	 
	 	 	 	 	 	 	 	 
	 	 	HARTFORD LIFE, INC.,
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	/s/ John N. Giamalis
 

	 	 
	 

	 	 	 	 	 	Name: John N. Giamalis	 	 
	 

	 	 	 	 	 	Title: Senior Vice President and Treasurer	 	 












 



85


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ABN AMRO Bank N.V. ,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	by	 	 	 	 	 	 
	 

	 	 	 	/s/ Neil R. Stein	 	/s/ Michael DeMarco	 	 
	 
	 	 	 	 
	 
	 
	 	 
	 

	 	 	 	Name: Neil R. Stein
	 	Michael DeMarco	 	 
	 

	 	 	 	Title: Director
	 	Vice President	 	 












 



86


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	The Bank of New York,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	/s/ Lizanne T. Eberle
 

	 	 
	 

	 	 	 	 	 	Name: Lizanne T. Eberle	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 












 



87


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	The Bank of Tokyo-Mitsubishi UFJ, LTD,	 	 
	 	 	New York Branch,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ Jesse A. Reid, Jr.
 

	 	 
	 

	 	 	 	 	 	Name: Jesse A. Reid, Jr.	 	 
	 

	 	 	 	 	 	Title: Authorized Signatory	 	 












 



88


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Branch Banking and Trust Company,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	/s/ Robert M. Searson
 

	 	 
	 

	 	 	 	 	 	Name: Robert M. Searson	 	 
	 

	 	 	 	 	 	Title: Senior Vice President	 	 












 



89


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Citigroup,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ Maria G. Hackley
 

	 	 
	 

	 	 	 	 	 	Name: Maria G. Hackley	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 












 



90


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Deutsche Bank AG New York Branch,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	/s/ Richard Herder
 

	 	 
	 

	 	 	 	 	 	Name: Richard Herder	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Michael Campites
 

	 	 
	 

	 	 	 	 	 	Name: Michael Campites	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 












 



91


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HSBC Bank USA, N.A. ,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ Dennis Cogan
 

	 	 
	 

	 	 	 	 	 	Name: Dennis Cogan	 	 
	 

	 	 	 	 	 	Title: Senior Vice President	 	 












 



92


	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE HARTFORD FINANCIAL SERVICES
GROUP, INC. AMENDED AND RESTATED FIVE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LENDER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	JPMorgan Chase Bank, N.A. ,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ Erin O’Rourke
 

	 	 
	 

	 	 	 	 	 	Name: Erin O’Rourke	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 













 





 93




	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


Mellon Bank, N.A.,


by
 	 
	 	  	/s/ Martin J. Randal
 	 
	 	 	Name:  	Martin J. Randal 	 
	 	 	Title:  	Vice President 	 
	 










 



94

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


The Royal Bank of Scotland PLC

by: Greenwich Capital Markets, Inc.


by
 	 
	 	  	/s/ George Urban
 	 
	 	 	Name:  	George Urban 	 
	 	 	Title:  	Vice President 	 
	 











 



95

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


State Street Bank and Trust Company,


by
 	 
	 	  	/s/ Edward M. Anderson
 	 
	 	 	Name:  	Edward M. Anderson 	 
	 	 	Title:  	Vice President 	 
	 











 



96

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


Sumitomo Mitsui Banking Corporation,


by
 	 
	 	  	/s/ Shigeru Tsuru
 	 
	 	 	Name:  	Shigeru Tsuru 	 
	 	 	Title:  	Joint General Manager 	 
	 











 



97

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


SunTrust Bank,


by
 	 
	 	  	/s/ Robert W. Maddox
 	 
	 	 	Name:  	Robert W. Maddox 	 
	 	 	Title:  	Vice President 	 
	 











 



98

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


UBS Loan Finance LLC,


by
 	 
	 	  	/s/ Richard T. Tavrow
 	 
	 	 	Name:  	Richard T. Tavrow 	 
	 	 	Title:  	Director

Banking Products Services, US 	 
	 
	 	by	 
	 	  	              /s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director

Banking Products Services, US 	 
	 











 



99

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


U.S. Bank National Assocation,


by
 	 
	 	  	/s/ Ziad W. Amra
 	 
	 	 	Name:  	Ziad W. Amra 	 
	 	 	Title:  	Assistant Vice President 	 
	 











 



100

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


Wachovia Bank, National Association,


by
 	 
	 	  	/s/ Joan Anderson
 	 
	 	 	Name:  	Joan Anderson 	 
	 	 	Title:  	Director 	 
	 











 



101

	 	 	 	 	 
	 	SIGNATURE PAGE TO THE HARTFORD 

FINANCIAL SERVICES GROUP, INC. 

AMENDED AND RESTATED FIVE-YEAR

COMPETITIVE ADVANCE AND 

REVOLVING CREDIT FACILITY

AGREEMENT.


LENDER:


Wells Fargo Bank, N.A.,


by
 	 
	 	  	/s/ Robert C. Meyer
 	 
	 	 	Name:  	Robert C. Meyer 	 
	 	 	Title:  	Senior Vice President