exv10w2






Exhibit 10.2




 

 






Published CUSIP Number: 59157FAT0




364-DAY CREDIT AGREEMENT




Dated as of October 15, 2010



among



METLIFE, INC.

AND

METLIFE FUNDING, INC.,

as Borrowers,



BANK OF AMERICA, N.A.,

as Administrative Agent,

Fronting L/C Issuer and Several L/C Agent,



JPMORGAN CHASE BANK, N.A.

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Syndication Agents



CREDIT SUISSE AG, NEW YORK BRANCH,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS BANK USA

and

HSBC BANK USA, NATIONAL ASSOCIATION,

as Co-Documentation Agents



and



The Other Lenders Party Hereto



BANC OF AMERICA SECURITIES LLC,

J.P. MORGAN SECURITIES LLC

and

WELLS FARGO SECURITIES, LLC,

as

Joint Lead Arrangers and Book Managers



 

 












 









 
















TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01.
	 	Defined Terms	 	 	1	 
	1.02.
	 	Other Interpretive Provisions	 	 	17	 
	1.03.
	 	Accounting Terms	 	 	18	 
	1.04.
	 	References to Agreements and Laws	 	 	18	 
	1.05.
	 	Days/Times of Day	 	 	18	 
	1.06.
	 	Letter of Credit Amounts	 	 	18	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	19	 
	2.01.
	 	Loans	 	 	19	 
	2.02.
	 	Borrowings, Conversions and Continuations of Loans	 	 	19	 
	2.03.
	 	Letters of Credit	 	 	20	 
	2.04.
	 	Prepayments	 	 	31	 
	2.05.
	 	Termination or Reduction of Commitments	 	 	32	 
	2.06.
	 	Repayment of Loans; Extension Option	 	 	33	 
	2.07.
	 	Interest	 	 	33	 
	2.08.
	 	Fees	 	 	33	 
	2.09.
	 	Computation of Interest and Fees	 	 	34	 
	2.10.
	 	Evidence of Debt	 	 	35	 
	2.11.
	 	Payments Generally	 	 	35	 
	2.12.
	 	Sharing of Payments	 	 	36	 
	2.13.
	 	Increase in Commitments	 	 	37	 
	2.14.
	 	Non-NAIC Approved Banks	 	 	38	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	38	 
	3.01.
	 	Taxes	 	 	38	 
	3.02.
	 	Illegality	 	 	41	 
	3.03.
	 	Inability to Determine Rates	 	 	41	 
	3.04.
	 	Increased Cost and Reduced Return; Capital Adequacy; Reserves	 	 	41	 
	3.05.
	 	Compensation for Losses	 	 	42	 
	3.06.
	 	Matters Applicable to all Requests for Compensation	 	 	42	 
	3.07.
	 	Survival	 	 	43	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES	 	 	43	 
	4.01.
	 	Organization; Powers	 	 	43	 
	4.02.
	 	Authorization; Enforceability	 	 	43	 





364-Day Credit Agreement





ii 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	4.03.
	 	Governmental Approvals; No Conflicts	 	 	43	 
	4.04.
	 	Financial Condition; No Material Adverse Change	 	 	43	 
	4.05.
	 	Properties	 	 	44	 
	4.06.
	 	Litigation and Environmental Matters	 	 	44	 
	4.07.
	 	Compliance with Laws and Agreements	 	 	44	 
	4.08.
	 	Investment Company Status	 	 	44	 
	4.09.
	 	Taxes	 	 	45	 
	4.10.
	 	ERISA	 	 	45	 
	4.11.
	 	Disclosure	 	 	45	 
	4.12.
	 	Margin Stock	 	 	45	 
	ARTICLE V. CONDITIONS TO CREDIT EXTENSIONS	 	 	45	 
	5.01.
	 	Closing Date	 	 	45	 
	5.02.
	 	Each Credit Event	 	 	46	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	46	 
	6.01.
	 	Financial Statements and Other Information	 	 	47	 
	6.02.
	 	Notices of Defaults	 	 	48	 
	6.03.
	 	Existence; Conduct of Business	 	 	48	 
	6.04.
	 	Payment of Obligations	 	 	48	 
	6.05.
	 	Maintenance of Properties; Insurance	 	 	49	 
	6.06.
	 	Books and Records; Inspection Rights	 	 	49	 
	6.07.
	 	Compliance with Laws	 	 	49	 
	6.08.
	 	Use of Proceeds	 	 	49	 
	6.09.
	 	Support Agreement	 	 	49	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	49	 
	7.01.
	 	Liens	 	 	50	 
	7.02.
	 	Fundamental Changes	 	 	51	 
	7.03.
	 	Transactions with Affiliates	 	 	51	 
	7.04.
	 	Consolidated Net Worth	 	 	52	 
	ARTICLE VIII. EVENTS OF DEFAULT	 	 	52	 
	8.01.
	 	Events of Default	 	 	52	 
	8.02.
	 	Remedies Upon Event of Default	 	 	53	 
	8.03.
	 	Application of Funds	 	 	54	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	55	 
	9.01.
	 	Appointment and Authorization of Administrative Agent	 	 	55	 
	9.02.
	 	Delegation of Duties	 	 	55	 





 364-Day Credit Agreement




iii 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	9.03.
	 	Liability of Administrative Agent	 	 	55	 
	9.04.
	 	Reliance by Administrative Agent	 	 	56	 
	9.05.
	 	Notice of Default	 	 	56	 
	9.06.
	 	Credit Decision; Disclosure of Information by Administrative Agent	 	 	56	 
	9.07.
	 	Indemnification of Administrative Agent	 	 	57	 
	9.08.
	 	Administrative Agent in its Individual Capacity	 	 	57	 
	9.09.
	 	Successor Administrative Agent	 	 	58	 
	9.10.
	 	Administrative Agent May File Proofs of Claim	 	 	58	 
	9.11.
	 	Other Agents; Joint Lead Arrangers and Book Managers	 	 	59	 
	ARTICLE X. MISCELLANEOUS	 	 	59	 
	10.01.
	 	Amendments, Etc	 	 	59	 
	10.02.
	 	Notices and Other Communications; Facsimile Copies	 	 	60	 
	10.03.
	 	No Waiver; Cumulative Remedies	 	 	62	 
	10.04.
	 	Enforcement	 	 	62	 
	10.05.
	 	Costs, Expenses and Indemnification	 	 	62	 
	10.06.
	 	Payments Set Aside	 	 	64	 
	10.07.
	 	Successors and Assigns	 	 	64	 
	10.08.
	 	Confidentiality	 	 	68	 
	10.09.
	 	Set-off	 	 	69	 
	10.10.
	 	Interest Rate Limitation	 	 	69	 
	10.11.
	 	Counterparts	 	 	69	 
	10.12.
	 	Integration	 	 	69	 
	10.13.
	 	Survival of Representations and Warranties	 	 	69	 
	10.14.
	 	Severability	 	 	70	 
	10.15.
	 	Mitigation of Obligations; Replacement of Lenders	 	 	70	 
	10.16.
	 	Governing Law	 	 	70	 
	10.17.
	 	Waiver of Right to Trial by Jury	 	 	71	 
	10.18.
	 	No Advisory or Fiduciary Responsibility	 	 	71	 
	10.19.
	 	USA PATRIOT Act Notice	 	 	71	 
	10.20.
	 	Waiver of Notice of Termination of Existing Credit Agreements	 	 	72	 






364-Day Credit Agreement







iv 









 








SCHEDULES




	 	 	 

	1.01

	 	Existing Letters of Credit
	2.01

	 	Commitments and Pro Rata Shares
	4.06

	 	Disclosed Matters
	10.2

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




Form of




	 	 	 

	A

	 	Loan Notice
	B

	 	Note
	C

	 	Assignment and Assumption
	D-1

	 	Opinion of MetLife In House Counsel
	D-2

	 	Opinion of Dewey & LeBoeuf LLP
	E

	 	Fronted Letter of Credit
	F

	 	Several Letter of Credit






364-Day Credit Agreement











v 









 








364-DAY CREDIT AGREEMENT




     This 364-DAY CREDIT AGREEMENT (“Agreement”) is entered into as of October 15, 2010,
among METLIFE, INC. (“MetLife”) and METLIFE FUNDING, INC. (“Funding”; together with
MetLife, each a “Borrower” and collectively the “Borrowers”), each lender from time
to time party hereto (collectively, the “Lenders” and individually, a “Lender”),
and BANK OF AMERICA, N.A., as Administrative Agent, Fronting L/C Issuer and Several L/C Agent.



     The Borrowers have requested that (a) the Lenders provide a revolving credit facility and (b)
the Fronting L/C Issuer issue and the Lenders issue and purchase participations in letters of
credit from time to time, and the Lenders and the Fronting L/C Issuer are willing to do so on the
terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



     “Act” has the meaning specified in Section 10.19.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under each of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address as set forth
on Schedule 10.02, or such other address as the Administrative Agent may from time to time
notify the Borrowers and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



     “Affected Lender” means a Lender that is not obligated to issue a particular Several
Letter of Credit because of one or more of the events or circumstances described in
Sections 2.03(a)(iii)(A) or (B) and that has elected not to issue such
Several Letter of Credit as a result of one or more of such events or circumstances.



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified; provided that, for the purposes of Section
10.07, any special purpose funding vehicle that funds itself principally in the commercial
paper market shall not constitute an Affiliate of any Lender. “Control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings correlative thereto.



     “Agent Parties” has the meaning specified in Section 10.02(d).



 









 





     “Agent-Related Persons” means the Administrative Agent, together with its Affiliates
(including, in the case of Bank of America in its capacity as the Administrative Agent, Banc of
America Securities LLC), and the partners, officers, directors, employees, agents and advisors of
such Persons and Affiliates.



     “Aggregate Commitments” means, as of the date of any determination, the Commitments of
all of the Lenders then in effect. As of the date hereof, the Aggregate Commitments shall equal
$1,000,000,000.



     “Agreement” means this 364-Day Credit Agreement.



     “Alico” means American Life Insurance Company, a Delaware-domiciled insurance company.



     “Alico Stock Purchase Agreement” means, collectively, the Stock Purchase Agreement,
dated as of March 7, 2010, by and among MetLife, ALICO Holdings LLC, a Delaware limited liability
company and American International Group, Inc., a Delaware corporation, together with any other
agreement entered into in connection therewith.



     “Applicable Insurance Regulatory Authority” means the insurance department or similar
insurance regulatory or administrative authority or agency of the jurisdiction in which the Company
is domiciled.



     “Applicable Rate” means, from time to time, the following percentages (expressed in
basis points) per annum, based upon the Debt Ratings as set forth below:



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	Debt Ratings	 	Commitment	 	Eurodollar Rate +	 	 
	Level	 	S&P/Moody’s	 	Fee	 	Letter of Credit Fee	 	Base Rate
	1	 	A+/A1 or better	 	 	15.0	 	 	 	150.0	 	 	 	50.0	 
	2	 	 	A/A2	 	 	 	15.0	 	 	 	150.0	 	 	 	50.0	 
	3	 	 	A-/A3	 	 	 	15.0	 	 	 	150.0	 	 	 	50.0	 
	4	 	BBB+/Baa1	 	 	15.0	 	 	 	150.0	 	 	 	50.0	 
	5	 	BBB/Baa2 or worse	 	 	15.0	 	 	 	150.0	 	 	 	50.0	 






     “Debt Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s (collectively, the “Debt Ratings”) of MetLife’s non-credit-enhanced,
senior unsecured long-term debt; provided that (a) if the respective Debt Ratings issued by
the foregoing rating agencies differ by one level, then the Pricing Level for the higher of such
Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest); (b) if there is a split in Debt Ratings of more than
one level, then the Pricing Level that is one level lower than the Pricing Level of the higher Debt
Rating shall apply; (c) if MetLife has only one Debt Rating, the Pricing Level of such Debt Rating
shall apply; and (d) if MetLife does not have any Debt Rating, Pricing Level 5 shall apply.



     Initially, the Applicable Rate shall be determined based upon Pricing Level 3. Each change in
the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be
effective, during the period commencing on the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.



2









 





     “Applicant” means with respect to a particular Letter of Credit, any Borrower or any
other Subsidiary of MetLife applying for such Letter of Credit pursuant to Section 2.03.



     “Approved Fund” has the meaning specified in Section 10.07(g).



     “Arrangers” means Banc of America Securities LLC, J.P. Morgan Securities LLC and Wells
Fargo Securities, LLC, in their capacities as joint lead arrangers and book managers.



     “Assignee Group” has the meaning specified in Section 10.07(g).



     “Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit C or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, in respect of any capital lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.



     “Audited Financial Statements” means the audited consolidated balance sheet of MetLife
and its Subsidiaries for the fiscal year ended December 31, 2009, and the related consolidated
statements of income, stockholders’ equity and cash flows for such fiscal year of MetLife and its
Subsidiaries, including the notes thereto.



     “Auto-Extension Letter of Credit” has the meaning specified in Section
2.03(b)(v).



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.05, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the Fronting L/C Issuer and the Lenders to make L/C Credit
Extensions pursuant to Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Bank of America Fee Letter” means that certain letter agreement dated as of September
10, 2010, among the Borrowers, Bank of America and Banc of America Securities LLC.



     “Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate” and (c) the Daily
Floating Eurodollar Rate plus 1% (or, if the Daily Floating Eurodollar Rate is not published or
available for a Business Day for any reason, the rate per annum determined by the Administrative
Agent to be the comparable one-month rate for such Business Day that would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market). The “prime
rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.01.



3









 





     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and,
in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of
New York or the state where the Administrative Agent’s Office is located and, if such day is a day
on which the Eurodollar Rate or the Daily Floating Eurodollar Rate is to be determined, means any
day on which dealings in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.



     “Cash Collateral” means, with respect to any Letter of Credit, deposit account
balances maintained with the Administrative Agent, denominated in Dollars and pledged, as
collateral, to the Administrative Agent for the benefit of the Fronting L/C Issuer or the Lenders,
as applicable, in an amount equal to the Outstanding Amount of L/C Obligations.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
Closing Date), of shares representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of MetLife, or (b) occupation of a majority
of the seats (other than vacant seats) on the board of directors of MetLife by Persons who were
neither (i) nominated by the board of directors of MetLife nor (ii) appointed by directors so
nominated.



     “Closing Date” means the date all the conditions precedent in Section 5.01 are
satisfied or waived in accordance with Section 10.01.



     “Co-Applicant” means MetLife, acting as a co-applicant for an Applicant (other than
Funding), with respect to a particular Letter of Credit.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Loans to the
Borrowers pursuant to Section 2.01, (b) issue Several Letters of Credit (or to purchase
participations therein if it becomes a Non-NAIC Approved Bank) and (c) purchase participations in
L/C Obligations with respect to Fronted Letters of Credit, in an aggregate principal amount at any
one time outstanding not to exceed the sum of (i) the amount set forth opposite such Lender’s name
on Schedule 2.01 and (ii) the amount set forth for such Lender in any Assignment and
Assumption pursuant to which such Lender acquired any such obligation, if applicable, as such sum
may be adjusted from time to time in accordance with this Agreement.



     “Commitment Fee” has the meaning specified in Section 2.08(a).



     “Company” means Metropolitan Life Insurance Company.



     “Compensation Period” has the meaning specified in Section 2.11(c)(ii).



     “Confirming Bank” means, as provided in Section 2.14 with respect to any
Non-NAIC Approved Bank, (a) Bank of America or (b) any other Lender that is an NAIC Approved Bank
and that has agreed to confirm Several Letters of Credit with respect to which such Non-NAIC
Approved Bank is an issuer



4









 




and which are outstanding during the period that such Non-NAIC Approved Bank is a Non-NAIC
Approved Bank.




     “Consolidated Net Worth” means the consolidated stockholders’ equity, determined in
accordance with GAAP, of MetLife and its Consolidated Subsidiaries; provided that in
determining such consolidated stockholders’ equity, any “Accumulated Other Comprehensive Income
(Loss)” shown on a consolidated balance sheet of MetLife and its Consolidated Subsidiaries prepared
in accordance with GAAP shall be excluded.



     “Consolidated Subsidiary” means, with respect to any Person (the “parent”) at
any date, any corporation, limited liability company, partnership, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date.



     “Control” has the meaning specified in the definition of “Affiliate”.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Daily Floating Eurodollar Rate” means, for any day, the rate per annum equal to BBA
LIBOR, as published by Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, on such day (or the immediately preceding Business Day if such day is not a Business
Day) for Dollar deposits with a term equivalent to one (1) month.



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate”.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservation, dissolution, bankruptcy, assignment for the benefit of creditors,
moratorium, rehabilitation, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States, any state of the United States or any other applicable
jurisdiction from time to time in effect and affecting the rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would, unless cured or waived, be an
Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate plus 2% per annum, in all cases to the fullest extent permitted by applicable Laws.



     “Defaulting Lender” means any Lender (or any entity that Controls such Lender or its
ability to fund hereunder, in the case of clause (d) hereunder) that (a) has failed to fund
any portion of the Loans, Letters of Credit or participations in L/C Obligations required to be
funded by it hereunder, within two Business Days of the date required to be funded by it hereunder
unless (i) such Lender notifies the Administrative Agent in writing that such failure is the result
of such Lender’s good faith determination that a condition precedent to funding (specifically
indentified and including the particular default, if any) has not been satisfied or (ii) such
failure has been cured, (b) has otherwise failed to pay over to the



5









 




Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within two Business Days of the date when due unless such failure is the subject of a good faith
dispute or has been cured, (c) has notified the Borrowers or the Administrative Agent in writing
that it does not intend to comply with any of its funding obligations under this Agreement or has
made a public statement that it does not intend to comply with its funding obligations under this
Agreement or generally under other agreements in which it commits to extend credit, or (d)(i) has
become the subject of a proceeding under any Debtor Relief Laws, (ii) has had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian appointed for it, or
(iii) has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.




     “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 4.06.



     “Dollar” and “$” mean lawful money of the United States.



     “Early Termination” has the meaning specified in the definition of “Material Unpaid
Swap Indebtedness”.



     “Eligible Assignee” has the meaning specified in Section 10.07(g).



     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
MetLife or any of its Material Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing, excluding in any case liabilities arising under any insurance
contract or policy, reinsurance agreement or retrocession agreement relating to any of the
foregoing.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with MetLife, is treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.



     “ERISA Event” means (a) “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “unpaid minimum required
contribution,” described in Section 4971(c)(4) of the Code, whether or not waived; (c) the filing
pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by MetLife or any of its
ERISA Affiliates of



6









 




any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by MetLife or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the incurrence by MetLife or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
MetLife or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from MetLife
or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.




     “Eurodollar Base Rate” has the meaning specified in the definition of “Eurodollar
Rate”.



     “Eurodollar Rate” means, for any Interest Period with respect to any Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 

	Eurodollar Rate

	 	=
	 	Eurodollar Base Rate	 	 
	 	 	 	 	 
	 	 	1.00 - Eurodollar Reserve Percentage
	 	 






     Where,



     “Eurodollar Base Rate” means, for such Interest Period the rate per annum equal to the
British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period. If such rate is not available at
such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest Period.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall
be adjusted automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income, franchise or similar taxes, in each case, imposed on (or measured by) its
net income by the United States of America, or by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office is located, or, in
the case of a jurisdiction (or any political subdivision thereof) that imposes taxes on the basis
of management or control or other concept or



7









 




principle of residence, the jurisdiction (or any political subdivision thereof) in which such
recipient is so resident, (b) Taxes imposed by reason of any present or former connection between
such Person and the jurisdiction (or any political subdivision thereof) imposing such Taxes, other
than solely as a result of the execution and delivery of this Agreement, the making of any Credit
Extensions hereunder or the performance of any action provided for hereunder, (c) any branch
profits taxes imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which any Borrower is located (d) any backup withholding tax imposed by the United
States of America as the result of a Lender’s failure to comply with Section 3.01(e), (e)
in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers
under Section 10.15(b)), any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a
new Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from such Borrower with respect to such withholding tax pursuant to Section 3.01(a)
or (ii) is attributable to such Foreign Lender’s failure to comply with Section 3.01(e),
and (f) any Taxes imposed on any “withholdable payment” payable to a Foreign Lender as the result
of its failure to comply with the applicable requirements of FATCA.




     “Existing Credit Agreements” means (a) that certain Amended and Restated Five-Year
Credit Agreement dated as of December 23, 2008, among the Borrowers, Bank of America, as
administrative agent, and the lenders party thereto, as amended or modified, and (b) that certain
Letter of Credit and Reimbursement Agreement dated as of December 22, 2009, among MetLife, Inc., as
borrower, Bank of America, as administrative agent, and the lenders party thereto, as amended or
modified.



     “Existing Letters of Credit” means the letters of credit heretofore issued by Bank of
America on a fronted basis pursuant to the Existing Credit Agreements that are described on
Schedule 1.01.



     “FATCA” means Sections 1471 through 1474 of the Code and any regulations (whether
temporary or proposed) that are issued thereunder or official governmental interpretations thereof.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as reasonably determined by the
Administrative Agent.



     “Fee Letters” mean the Bank of America Fee Letter, the JPMorgan Fee Letter, and the
Wells Fargo Fee Letter.



     “FHLBB” has the meaning specified in Section 7.01(i).



     “Final Maturity Date” has the meaning specified in Section 2.06.



     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of MetLife.



     “Foreign Lender” means any Lender that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code.



8









 





     “FRB” means the Board of Governors of the Federal Reserve System of the United States.



     “Fronted Letter of Credit” means any Letter of Credit which is issued by the Fronting
L/C Issuer pursuant to Section 2.03(a), in substantially the form of Exhibit E or
in such other form as may be acceptable to the Fronting L/C Issuer.



     “Fronting L/C Issuer” means Bank of America in its capacity as an issuer of Fronted
Letters of Credit, or any successor in such capacity.



     “Fund” has the meaning specified in Section 10.07(g).



     “Funding” has the meaning specified in the introductory paragraph hereto.



     “GAAP” means generally accepted accounting principles in the United States.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.



     “Granting Lender” has the meaning specified in Section 10.07(h).



     “Guarantee” means, as to any Person, any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Honor Date” has the meaning specified in Section 2.03(c)(i) and
(c)(ii).



     “Increase Effective Date” has the meaning specified in Section 2.13(c).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



9









 






     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments
(excluding, for the avoidance of doubt, surety bonds, fidelity bonds and other similar
insurance products);




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties and similar
instruments;




     (c) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




     (d) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (e) all Surplus Relief Reinsurance ceded by such Person;




     (f) capital leases of which such Person is the lessee; and




     (g) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any capital lease as of
any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.



     “Indemnified Liabilities” has the meaning specified in Section 10.05(b).



     “Indemnified Taxes” means Taxes imposed on any amount payable by any Borrower under
this Agreement, other than Excluded Taxes.



     “Indemnitee” has the meaning specified in Section 10.05(b).



     “Information” has the meaning specified in Section 10.08.



     “Interest Payment Date” means, (a) as to any Loan owing to any Lender other than a
Base Rate Loan, the last day of each Interest Period applicable to such Loan; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; (b) as to any Base Rate Loan owing to any Lender, the last Business
Day of each March, June, September and December; and (c) as to any Loan, the Maturity Date or, if
the final maturity of the Loans is extended pursuant to Section 2.06, the Final Maturity
Date.



     “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months (or nine or twelve months if consented to by
all of the Lenders) thereafter, as selected by the applicable Borrower in its Loan Notice;
provided that:



10









 






     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar
Rate Loan, such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;




     (b) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest Period; and




     (c) no Interest Period shall extend beyond the Maturity Date or, if the final maturity
of the Loans is extended pursuant to Section 2.06, the Final Maturity Date.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the Fronting L/C
Issuer or the Several L/C Agent, as applicable, and a Borrower (and, if applicable, any Subsidiary
as an Applicant) or in favor of the Fronting L/C Issuer or the Several L/C Agent, as applicable,
and relating to any such Letter of Credit.



     “JPMorgan Fee Letter” means that certain letter agreement dated as of September 10,
2010, among the Borrowers and J.P. Morgan Securities LLC.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof, the extension of the expiry date thereof or the increase of the amount thereof.



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all unpaid Unreimbursed Amounts.
For purposes of computing the aggregate undrawn amount of any Letter of Credit (other than for
purposes of calculating the fees payable pursuant to Sections 2.03(i) and (j) and
Sections 2.08(a) and (b)), such amount shall be determined in accordance with
Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter
of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Fronting L/C Issuer, the Several L/C Agent and each Limited Fronting
Lender.



11









 





     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrowers and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued or deemed issued
hereunder and shall include the Existing Letters of Credit (which for the avoidance of doubt, will
be deemed issued hereunder as of the Closing Date).



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the Fronting L/C Issuer or
the Several L/C Agent, as applicable.



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).



     “Limited Fronting Lender” means, (a) as provided in Section 2.03(a)(vi), (i)
Bank of America (so long as it is not an Affected Lender with respect to a particular Several
Letter of Credit) or (ii) any other Lender (so long as it is not an Affected Lender with respect to
a particular Several Letter of Credit) that agrees that it shall be an issuer with respect to any
Affected Lender’s Pro Rata Share of a particular Several Letter of Credit, or (b) as provided in
Section 2.14, (i) Bank of America or (ii) any other Lender that is a NAIC Approved Bank and
that agrees that it shall be an issuer with respect to any Non-NAIC Approved Bank’s Pro Rata Share
of Several Letters of Credit issued during the period that such Non-NAIC Approved Bank is a
Non-NAIC Approved Bank.



     “Loan” has the meaning specified in Section 2.01.



     “Loan Documents” means this Agreement, each Note, each Letter of Credit, each Issuer
Document, and the Fee Letters.



     “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one
Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.



     “Margin Stock” means “margin stock” within the meaning of Regulations U and X of the
FRB.



     “Material Adverse Change” means any event, development or circumstance that has had or
could reasonably be expected to have a material adverse effect on (a) the business, assets,
property or financial condition of MetLife and its Subsidiaries taken as a whole, or (b) the
validity or enforceability of this Agreement or the rights and remedies of the Administrative Agent
and the Lenders hereunder. For the avoidance of doubt, Material Adverse Change shall be determined
after giving effect to third party payments (whether made directly or indirectly, including without
limitation by way assumption of liabilities or adjustment to purchase price), if any, reasonably
expected to be received under any applicable insurance contract or policy, reinsurance agreement,
retrocession agreement, indemnification agreement or acquisition agreement, including without
limitation the Alico Stock Purchase Agreement.



12









 





     “Material Indebtedness” means at any time Indebtedness (other than the Loans and L/C
Obligations) of MetLife or any of its Material Subsidiaries in an aggregate principal amount
exceeding $750,000,000 minus the aggregate principal amount of Material Unpaid Swap Indebtedness at
such time.



     “Material Subsidiary” means, at any time, (i) Funding, (ii) the Company and (iii) each
Subsidiary of MetLife that satisfies the definition of “significant subsidiary” contained as of the
Closing Date in Regulation S-X of the SEC, but excluding any Subsidiary (an “Investment
Subsidiary”) established in connection with the ownership and investment management of the general
account assets of (a) the Company or (b) any other Material Subsidiary of MetLife that is an
insurance company (each of the Company and such other insurance company being an “Insurance
Subsidiary”); provided, however, that so long as the consolidated assets of the Investment
Subsidiaries of any Insurance Subsidiary exceed 25% of the consolidated assets of such Insurance
Subsidiary, then each such Investment Subsidiary shall be deemed to be a Material Subsidiary.



     “Material Unpaid Swap Indebtedness” means such obligations of MetLife or any of its
Material Subsidiaries: (i) then due and payable by MetLife or any of its Material Subsidiaries in
respect of one or more Swap Contracts (giving effect to any legally enforceable netting agreements)
as a result of such Swap Contracts being terminated, accelerated, or closed-out prior to the
scheduled termination of such Swap Contracts (an “Early Termination”), and (ii) such Early
Termination was the result of an event of default or other similar breach of such Swap Contracts
attributable to MetLife or any of its Material Subsidiaries.



     “Maturity Date” means October 14, 2011.



     “Maximum Rate” has the meaning specified in Section 10.10.



     “MetLife” has the meaning specified in the introductory paragraph hereto.



     “MetLife Entity” has the meaning specified in Section 7.01(j).



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “NAIC” means the National Association of Insurance Commissioners and any successor
thereto.



     “NAIC Approved Bank” means any Lender that is listed on the most current “Bank List”
of banks approved by the NAIC; provided that if such Lender is a Foreign Lender, such Lender is
acting through the United States branch of such Lender listed on such “Bank List”.



     “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(v).



     “Non-NAIC Approved Bank” means, at any time, any Lender that is not a NAIC Approved
Bank.



     “Note” means a promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Borrower arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the



13









 




commencement by or against any Borrower or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.




     “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.



     “Outstanding Amount” means (i) with respect to Loans on any date, the aggregate
principal amount thereof outstanding at the close of business on such date after giving effect to
any borrowings, prepayments or repayments of Loans occurring on such date; and (ii) with respect to
any L/C Obligations on any date, the amount of such L/C Obligations at the close of business on
such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including such changes
resulting from any reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit taking effect on
such date.



     “Participant” has the meaning specified in Section 10.07(d).



     “Participant Register” has the meaning specified in Section 10.07(d).



     “Participating L/C Issuer” means, from time to time with respect to each Several
Letter of Credit, each Affected Lender or Non-NAIC Approved Bank, as applicable, for whose Pro Rata
Share a Limited Fronting Lender has agreed to be liable as an issuer.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Permitted Encumbrances” means:




     (a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 6.04;




     (b) bankers’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested in compliance
with Section 6.04;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




     (e) Liens on deposit accounts or securities accounts, including bankers’ Liens and
rights of setoff arising in the ordinary course of business;




     (f) Liens arising out of deposits of cash or securities with reinsurance trusts, ceding
companies or insurance regulators in the ordinary course of business; and



14









 






     (g) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of any Borrower or the Company;




  provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which MetLife or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.



     “Platform” has the meaning specified in Section 6.01.



     “Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed
as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of
the Commitment of such Lender at such time and the denominator of which is the amount of the
Aggregate Commitments at such time; provided that if each Lender’s Commitment and the
obligation of the Fronting L/C Issuer to make L/C Credit Extensions have been terminated pursuant
to Section 8.02, then the Pro Rata Share of each Lender shall be determined based on the
Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The Pro Rata
Share of a Lender may be adjusted in accordance with the provisions of this Agreement, including
provisions regarding Defaulting Lenders.



     “Public Lender” has the meaning specified in Section 6.01.



     “Register” has the meaning specified in Section 10.07(c).



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the Commitment of each Lender has been terminated pursuant
to Section 8.02, Lenders holding more than 50% of the Total Outstandings (with the
aggregate amount of each Lender’s issuer liability or risk participation and funded participation
in L/C Obligations being deemed “held” by such Lender for purposes of this definition);
provided that the Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, principal accounting officer, treasurer, assistant treasurer or controller of a Borrower.
Any document delivered hereunder that is signed by a Responsible Officer of a Borrower shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and other
action on the part of such Borrower and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Borrower.



     “Risk Participation Cash Collateral” means, with respect to any Fronted Letter of
Credit, deposit account balances maintained with the Administrative Agent, denominated in Dollars
and pledged, as



15









 




collateral, to the Administrative Agent for the benefit of the Fronting L/C Issuer or any
Limited Fronting Lender, as applicable, in an amount equal to (x) the aggregate Pro Rata Shares of
all Defaulting Lenders times (y) the amount available to be drawn under such Fronted Letter of
Credit, such pledge to be made pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent (which documentation is hereby consented to by the
Lenders, the Fronting L/C Issuer and each Limited Fronting Lender, as applicable).




     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “SAP” means the accounting procedures and practices prescribed or permitted by the
Applicable Insurance Regulatory Authority or the NAIC.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Securities Transactions” means (a) securities lending arrangements, and (b)
repurchase and reverse repurchase arrangements with respect to securities and financial
instruments.



     “Several L/C Agent” means Bank of America, in its capacity as agent and
attorney-in-fact for the Lenders in issuing and amending Several Letters of Credit, or any
successor in such capacity.



     “Several Letter of Credit” means any Letter of Credit issued severally by the Lenders,
substantially in the form of Exhibit F, with such changes therein as the Several L/C Agent
determines are acceptable to it and not adverse to the interests of the Lenders.



     “SPC” has the meaning specified in Section 10.07(h).



     “Statutory Statement” means a statement of the condition and affairs of the Company,
prepared in accordance with SAP, and filed with the Applicable Insurance Regulatory Authority.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of any Borrower.



     “Support Agreement” means the Support Agreement dated as of November 30, 1984 between
the Company and Funding, as amended and restated effective as of that date on July 2, 1985.



     “Surplus Relief Reinsurance” means any transaction in which the Company or any
Subsidiary of the Company cedes business under a reinsurance agreement that would be considered a
“financing-type” reinsurance agreement as determined by the independent certified public
accountants of the Company in accordance with principles published by the Financial Accounting
Standards Board or the Second Edition of the AICPA Audit Guide for Stock Life Insurance Companies
(pp. 91-92), as the same may be revised from time to time.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity



16









 




contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement with a similar
subject matter (any such master agreement, together with any related schedules, or annexes, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.




     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority including penalties,
interest and additions to tax.



     “Three-Year Credit Agreement” means the Three-Year Credit Agreement dated as of the
date hereof by and among Borrowers, the lenders party thereto from time to time, and Bank of
America, N.A., as administrative agent, fronting letter of credit issuer and several letter of
credit agent, as the same may be amended, supplemented or otherwise modified from time to time.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Transactions” means the execution, delivery and performance by the Borrowers of this
Agreement, the Borrowings when made, the issuance of Letters of Credit when issued and the use of
proceeds thereof.



     “Type” means with respect to a Loan, its character as a Base Rate Loan or a Eurodollar
Rate Loan.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i) and
(ii).



     “Wells Fargo Fee Letter” means that certain letter agreement dated as of September 10,
2010, among the Borrowers and Wells Fargo Securities, LLC.



     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



     1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



     (b) (i) The words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.



17









 






     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which
such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



     (c) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



     (d) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03. Accounting Terms.



     (a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data required to be submitted pursuant to this Agreement shall
be prepared in conformity with, GAAP or SAP, as the case may be, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited Financial Statements or
Statutory Statements, as of and for the year ended December 31, 2009, as applicable, except
as otherwise specifically prescribed herein.



     (b) If at any time any change in GAAP or SAP would affect the computation of any requirement
set forth in any Loan Document, and either the Borrowers or the Required Lenders shall so request,
the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such
requirement to preserve the original intent thereof in light of such change in GAAP or SAP (subject
to the approval of the Required Lenders); provided that, until so amended, (i) such
requirement shall continue to be computed in accordance with GAAP or SAP, as applicable, as in
effect prior to such change therein and (ii) the Borrowers shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such
requirement made before and after giving effect to such change in GAAP or SAP.



     1.04. References to Agreements and Laws. Unless otherwise expressly provided herein, (a)
references to agreements (including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and (b) references to
any Law shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.



     1.05. Days/Times of Day. Unless otherwise specified, (a) all references herein to a day shall be
references to a calendar day, and (b) all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).



     1.06. Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of
a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of
Credit after giving effect to all increases thereof that occur without amendment as the result of



18









 




the occurrence of a date, the passage of time or the occurrence or nonoccurrence of an event, as
expressly set forth in such Letter of Credit or the Issuer Documents related thereto, whether or
not such maximum face amount is in effect at such time.




ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01. Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Loan”) to the Borrowers from time to time, on any Business
Day during such Lender’s Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however, that after
giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any Lender, plus the
Outstanding Amount of all L/C Obligations owing to such Lender (whether as an issuer or as a
participant) shall not exceed such Lender’s Commitment (except as provided in clauses (A),
(D) and (E), as applicable, of Section 2.03(a)(i) for the Fronting L/C
Issuer or a Limited Fronting Lender). Within the limits of each Lender’s Commitment, and subject
to the other terms and conditions hereof, any Borrower or all Borrowers may borrow under this
Section 2.01, prepay under Section 2.04, and reborrow under this Section
2.01. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. The
obligations of the Borrowers to repay Loans and L/C Obligations shall be several, not joint.



     2.02. Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon a Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by a Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of a Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c), each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) which Borrower is borrowing the Borrowing, (ii) whether a Borrower is requesting
a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (iii) the requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or
continued, (v) the Type of Loans to be borrowed or to which existing Loans are to be converted, and
(vi) if applicable, the duration of the Interest Period with respect thereto. If a Borrower fails
to specify a Type of Loan in a Loan Notice or if a Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If a Borrower requests a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.



     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Borrowing, and if no timely notice of
a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall
notify



19









 




each Lender of the details of any automatic conversion to Base Rate Loans described in the
preceding Subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. As
promptly as practicable, upon satisfaction of the applicable conditions set forth in Section
5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01), the
Administrative Agent shall make all funds so received available to the applicable Borrower in like
funds as received by the Administrative Agent by either (i) crediting the account of the applicable
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the applicable Borrower; provided, however, that if, on
the date the Loan Notice with respect to such Borrowing is given by a Borrower, there are
Unreimbursed Amounts of such Borrower outstanding, then the proceeds of such Borrowing,
first, shall be applied to the payment in full of any such Unreimbursed Amounts, and
second, shall be made available to such Borrower as provided above.




     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. If an Event of Default
has occurred and is continuing and the Required Lenders through the Administrative Agent so notify
the Borrowers, then so long as such Event of Default is continuing, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans.



     (d) The Administrative Agent shall promptly notify the applicable Borrower and the Lenders of
the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America’s
prime rate used in determining the Base Rate promptly following the public announcement of such
change.



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans of the same Type, there shall not at any one time be more
than ten Interest Periods in effect with respect to Loans, unless the Administrative Agent
otherwise agrees.



     2.03. Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, from time to time on any
Business Day during the Availability Period, (A) the Fronting L/C Issuer agrees, in reliance
upon the agreements of the other Lenders set forth in this Section 2.03, (1) to
issue Fronted Letters of Credit for the account of any Borrower or any of its Subsidiaries,
and to amend or extend Fronted Letters of Credit previously issued by it, and (2) to honor
drawings under Fronted Letters of Credit; (B) each Lender agrees, through the Several L/C
Agent, (1) to issue severally, and for itself alone, Several Letters of Credit at the
request of and for the account of any Borrower or any of its Subsidiaries in such Lender’s
Pro Rata Share of the aggregate stated amounts of such Several Letters of Credit, and to
amend or extend Several Letters of Credit previously issued by it, and (2) to honor
severally, and for itself alone, drawings under the Several Letters of Credit in an amount
equal to its Pro Rata Share of such drawings; (C) the Lenders severally agree to
participate in Fronted Letters of Credit issued for the account of any Borrower or any of
its Subsidiaries and any drawings thereunder in accordance with their Pro Rata Shares; (D)
with respect to any Affected Lender or Non-NAIC Approved Bank, as applicable, as a
Participating L/C Issuer under any Several Letter of Credit to be issued pursuant hereto,
each Limited Fronting



20









 







Lender, in reliance upon the agreements of such Affected Lender or Non-NAIC Approved
Bank, as applicable, as a Participating L/C Issuer set forth in this Section 2.03,
agrees to issue through the Several L/C Agent, in addition to or as a part of the Several
Letters of Credit it has agreed to issue on its own behalf, severally any such Several
Letter of Credit, for the account of any Borrower or any of its Subsidiaries, in an amount
equal to such Affected Lender’s or Non-NAIC Approved Bank’s, as applicable, Pro Rata Share
of the stated amount of such Several Letter of Credit, and to amend or extend each such
Several Letter of Credit previously issued by it as a Limited Fronting Lender for such
Participating L/C Issuer; and (E) with respect to any Several Letter of Credit issued by a
Limited Fronting Lender pursuant to clause (D) preceding, each applicable Affected
Lender or Non-NAIC Approved Bank, as applicable, agrees to purchase participations in the
obligations of such Limited Fronting Lender under such Several Letter of Credit in an amount
equal to all of the credit exposure of such Limited Fronting Lender (solely in its capacity
as a Limited Fronting Lender for such Affected Lender or Non-NAIC Approved Bank, as
applicable) under such Several Letter of Credit; provided that after giving effect
to any L/C Credit Extension, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, and (y) the aggregate Outstanding Amount of the Loans of any Lender,
plus the Outstanding Amount of all L/C Obligations owing to such Lender (whether as
an issuer or as a participant) shall not exceed such Lender’s Commitment (except as provided
in clauses (A), (D) and (E), as applicable, above for the Fronting
L/C Issuer or a Limited Fronting Lender). Each request by a Borrower for the issuance or
amendment or extension of a Letter of Credit shall be deemed to be a representation by such
Borrower that the L/C Credit Extension so requested complies with the conditions set forth
in this Agreement. 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 Availability Period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed. If
requested by the applicable Borrower but subject to the terms and conditions hereof, a
Letter of Credit shall satisfy the requirements for letters of credit under the
credit-for-reinsurance provisions of the relevant beneficiary’s domiciliary state’s
insurance laws and regulations (or the requirements for similar purposes of such other
Governmental Authority which then regulates the relevant beneficiary’s insurance business as
may be specified by the applicable Borrower) as to which the applicable Borrower provides
written notice to the Fronting L/C Issuer or the Several L/C Agent, as applicable, and the
Administrative Agent prior to the date of issuance of such Letter of Credit;
provided, that the Fronting L/C Issuer or the Several L/C Agent, as applicable, the
Administrative Agent or any Lender shall not be obligated to verify such satisfaction. All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto by the
Fronting L/C Issuer, and from and after the Closing Date shall be subject to and governed by
the terms and conditions hereof.




     (ii) Neither the Fronting L/C Issuer, the Several L/C Agent nor the Lenders, as
applicable, shall issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(v), the expiry date of such Letter of
Credit would occur more than twelve months after the date of issuance or last
extension, unless the Required Lenders have approved such expiry date; or




     (B) the expiry date of such Letter of Credit would occur more than twelve
months after the Maturity Date, unless all the Lenders have approved such expiry
date;




     (iii) Neither the Fronting L/C Issuer, the Several L/C Agent nor any Lender, as
applicable, shall be under any obligation to issue any Letter of Credit if:



21









 






     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the Fronting L/C Issuer, the
Several L/C Agent or, if the Administrative Agent has been notified thereof by such
Lender, any Lender from issuing such Letter of Credit, or any Law applicable to the
Fronting L/C Issuer, the Several L/C Agent or, if the Administrative Agent has been
notified thereof by such Lender, any Lender or any request or directive (whether or
not having the force of law) from any Governmental Authority with jurisdiction over
the Fronting L/C Issuer, the Several L/C Agent or, if the Administrative Agent has
been notified thereof by such Lender, any Lender shall prohibit, or request that the
Fronting L/C Issuer, the Several L/C Agent or, if the Administrative Agent has been
notified thereof by such Lender, any Lender refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the
Fronting L/C Issuer, the Several L/C Agent or, if the Administrative Agent has been
notified thereof by such Lender, any Lender with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the Fronting L/C Issuer,
the Several L/C Agent or, if the Administrative Agent has been notified thereof by
such Lender, any Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Fronting L/C Issuer, the Several L/C Agent
or, if the Administrative Agent has been notified thereof by such Lender, any Lender
any unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the Fronting L/C Issuer, the Several L/C Agent or, if the Administrative
Agent has been notified thereof by such Lender, any Lender in good faith deems
material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
the Fronting L/C Issuer, the Several L/C Agent or if the Administrative Agent has
been notified thereof by such Lender, any Lender, as applicable, applicable to
letters of credit generally;




     (C) except as otherwise agreed by the Fronting L/C Issuer or the Several L/C
Agent, as applicable, such Letter of Credit is in an initial amount of less than
$1,000,000;




     (D) after the issuance of such Letter of Credit, more than sixty Letters of
Credit would be outstanding unless the Borrowers, the Fronting L/C Issuer and the
Several L/C Agent otherwise agree;




     (E) such Letter of Credit is to be denominated in a currency other than
Dollars;




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




     (G) if such Letter of Credit is a Fronted Letter of Credit or a Several Letter
of Credit in respect of which there is a Limited Fronting Lender, any Lender is a
Defaulting Lender thereunder, unless the Fronting L/C Issuer or the applicable
Limited Fronting Lender, as applicable, has entered into arrangements satisfactory
to it (including, without limitation, arrangements for the provision of Risk
Participation Cash Collateral) with the Borrowers or such Defaulting Lender to
eliminate the Fronting L/C Issuer’s or the applicable Limited Fronting Lender’s, as
applicable, risk with respect to such Defaulting Lender; provided, that, if
the Borrowers provide Risk Participation Cash Collateral with respect to a Letter of
Credit requested to be issued hereunder, the Fronting L/C Issuer or the applicable
Limited Fronting Lender, as applicable, shall not be entitled to rely on this



22









 







clause as justification for not issuing such Letter of Credit. To the extent
that the Borrowers provide Risk Participation Cash Collateral, the Borrowers hereby
grant to the Administrative Agent, for the benefit of the Fronting L/C Issuer or the
applicable Limited Fronting Lender, as applicable, a security interest in all
deposit accounts and all balances therein constituting such Risk Participation Cash
Collateral and all proceeds of the foregoing solely as security for the purposes
described under Section 2.03(c)(i) hereof. Such Risk Participation Cash
Collateral shall be maintained in blocked transaction accounts with the
Administrative Agent; provided that (1) in the event that any Lender on account of
whom such Risk Participation Cash Collateral was delivered shall no longer be a
Defaulting Lender, the Administrative Agent shall return to the pledgor such portion
of Risk Participation Cash Collateral attributable to such Lender, (2) in the event
that any Lender on account of whom such Risk Participation Cash Collateral was
delivered shall have its Commitment reduced, the Administrative Agent shall return
to the pledgor such portion of the Risk Participation Cash Collateral attributable
to such Lender in proportion to the amount by which such Lender’s Commitment is so
reduced, (3) in the event that the applicable Letter of Credit on account of which
such Risk Participation Cash Collateral was delivered expires or is drawn upon, and
such drawing has been reimbursed by the Borrower, the Administrative Agent shall
return to the pledgor such portion of the Risk Participation Cash Collateral
attributable to such expired Letter of Credit or such reimbursed drawing, as
applicable, and (4) to the extent the Borrowers provide Risk Participation Cash
Collateral, such Risk Participation Cash Collateral shall be applied to satisfy
drawings under the Letters of Credit as they occur.




     (iv) Neither the Fronting L/C Issuer, the Several L/C Agent nor any Lender, as
applicable, shall amend or extend any Letter of Credit if it would not be permitted at such
time to issue such Letter of Credit in its amended form under the terms hereof.




     (v) Neither the Fronting L/C Issuer, the Several L/C Agent nor any Lender, as
applicable, shall be under any obligation to amend any Letter of Credit if (A) the Fronting
L/C Issuer, the Several L/C Agent or such Lender, as applicable, 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.




     (vi) Each Lender shall promptly notify the Administrative Agent (which shall in turn
notify the Several L/C Agent and the Borrowers) upon becoming an Affected Lender with
respect to a particular Several Letter of Credit. In the absence of receipt by the
Administrative Agent of such notice by a Lender that it has become an Affected Lender with
respect to a particular Several Letter of Credit, it shall be conclusively presumed by the
Administrative Agent and the Several L/C Agent that such Lender is not an Affected Lender
with respect to such Several Letter of Credit. If such notice is given by an Affected
Lender with respect to a particular Several Letter of Credit, such notice shall not be
effective as a like notice with respect to any other Several Letter of Credit. If such
notice is given by an Affected Lender with respect to a particular Several Letter of Credit,
upon the Borrowers’ request (A) Bank of America will act as the Limited Fronting Lender for
such Affected Lender with respect to the applicable Several Letter of Credit, or (B) another
Lender may agree to act as the Limited Fronting Lender for such Affected Lender with respect
to the applicable Several Letter of Credit upon such terms and conditions as such Affected
Lender and such other Lender may agree.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.



23









 






     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Applicant, and, if a Subsidiary of MetLife (other than Funding) is the
Applicant, MetLife, as Co-Applicant, by the delivery to (A) the Fronting L/C Issuer, in the
case of Fronted Letters of Credit, (B) the Several L/C Agent, in the case of Several Letters
of Credit, and (C) the Administrative Agent (which shall promptly notify the Lenders of such
request, in the case of a Several Letter of Credit), in each case, of a writing in the form
of a Letter of Credit Application, appropriately completed and signed by a Responsible
Officer of the Applicant and, if a Subsidiary of MetLife (other than Funding) is the
Applicant, MetLife. Such Letter of Credit Application must be received by the Fronting L/C
Issuer or the Several L/C Agent, as applicable, and the Administrative Agent (A) not later
than 11:00 a.m. at least two Business Days prior to the proposed issuance date or date of
amendment (or such shorter time as the Administrative Agent and the Fronting L/C Issuer may
agree in a particular instance in their sole discretion), as the case may be of any Fronted
Letter of Credit, and (B) not later than 11:00 a.m. at least three Business Days prior to
the proposed issuance date or date of amendment (or such shorter time as the Administrative
Agent and the Several L/C Agent may agree in a particular instance in their sole
discretion), as the case may be, of any Several Letter of Credit. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the Fronting L/C Issuer or the Several L/C Agent,
as applicable: (A) who is the Applicant and, if the Applicant is a Subsidiary of MetLife
(other than Funding), that MetLife is the Co-Applicant; (B) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (C) the amount thereof; (D)
the expiry date thereof; (E) the name and address of the beneficiary thereof; (F) the
documents to be presented by such beneficiary in case of any drawing thereunder; (G) the
full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (H) the purpose and nature of the requested Letter of Credit; (I) whether such
Letter of Credit is to be issued as a Fronted Letter of Credit or a Several Letter of Credit
and, if such Letter of Credit is to be issued as a Several Letter of Credit, whether there
is to be a Limited Fronting Lender (and if there is a Limited Fronting Lender other than
Bank of America, the name of such Limited Fronting Lender); and (J) such other matters as
the Fronting L/C Issuer, the Several L/C Agent, or any Lender (through the Administrative
Agent), as applicable, may reasonably require. In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the Fronting L/C Issuer or the Several L/C Agent, as applicable,
(w) the Letter of Credit to be amended; (x) the proposed date of amendment thereof (which
shall be a Business Day); (y) the nature of the proposed amendment; and (z) such other
matters as the Fronting L/C Issuer, the Several L/C Agent or any Lender (through the
Administrative Agent), as applicable, may reasonably require. Additionally, the Applicant
shall furnish to the Fronting L/C Issuer or the Several L/C Agent, as applicable, and the
Administrative Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as the Fronting L/C
Issuer, the Several L/C Agent, or any Lender (through the Administrative Agent), as
applicable, may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the Fronting L/C
Issuer or the Several L/C Agent, as applicable, will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy of such
Letter of Credit Application from the Applicant and, if applicable, MetLife, as the
Co-Applicant, and, if not, the Fronting L/C Issuer or the Several L/C Agent, as applicable,
will provide the Administrative Agent with a copy thereof. Unless the Fronting L/C Issuer
or the Several L/C Agent, as applicable, has received written notice from any Lender, the
Administrative Agent or any Borrower, at least one Business Day prior to the requested date
of issuance or amendment of the applicable Letter of Credit, that such Letter of Credit is
not permitted to be issued hereunder or that one or more applicable conditions contained in
Article V shall not then be satisfied, then,



24









 







subject to the terms and conditions hereof, the Fronting L/C Issuer or the Several L/C
Agent, as applicable, shall, on the requested date, issue a Letter of Credit for the account
of the applicable Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the Fronting L/C Issuer’s or
the Several L/C Agent’s, as applicable, usual and customary business practices.




     (iii) The Several L/C Agent is hereby authorized to execute and deliver each Several
Letter of Credit and each amendment to a Several Letter of Credit on behalf of each Lender
and to otherwise act on behalf of each Lender with respect to each Several Letter of Credit.
The Several L/C Agent shall use the Pro Rata Share of each Lender as its “Commitment Share”
(or equivalent term) under each Several Letter of Credit; provided that the applicable
Limited Fronting Lender, in its capacity as such, shall, in addition to its own “Commitment
Share” as a Lender, have a “Commitment Share” (or equivalent term) equal to the Pro Rata
Share of each Participating L/C Issuer for which such Limited Fronting Lender serves in such
capacity under such Several Letter of Credit. The Several L/C Agent is hereby authorized to
amend a Several Letter of Credit to change the “Commitment Share” (or equivalent term) of a
Lender or add or delete a Lender liable thereunder in connection with an assignment or any
other addition or replacement of a Lender in accordance with the terms of this Agreement.
In the event a Lender becomes a Participating L/C Issuer or ceases to be a Participating L/C
Issuer, the Several L/C Agent is hereby authorized to amend each Several Letter of Credit to
reflect such change in status and to change the “Commitment Share” (or equivalent term) of
the applicable Limited Fronting Lender, as the case may be. Each Lender hereby irrevocably
constitutes and appoints the Several L/C Agent its true and lawful attorney-in-fact for and
on behalf of such Lender with full power of substitution and revocation in its own name or
in the name of the Several L/C Agent for the limited purpose of issuing, executing and
delivering, as the case may be, each Several Letter of Credit and each amendment to a
Several Letter of Credit and for carrying out the purposes of this Agreement with respect to
Several Letters of Credit.




     (iv) It is the intention and agreement of the Administrative Agent, the Lenders and the
Several L/C Agent that (A) except as otherwise expressly set forth herein (including with
respect to Limited Fronting Lenders), the rights and obligations of the Lenders in respect
of outstanding Several Letters of Credit shall be determined in accordance with the Pro Rata
Shares of the Lenders from time to time in effect and (B) outstanding Several Letters of
Credit shall be promptly amended to reflect any changes in the Pro Rata Shares of the
Lenders, whether arising in connection with an assignment pursuant to Section 10.07,
an increase of the Aggregate Commitments pursuant to Section 2.13, or any other
event or circumstance resulting in a change in the Pro Rata Shares of the Lenders under this
Agreement. However, it is acknowledged by the Administrative Agent, the Lenders and the
Several L/C Agent that amendments of outstanding Several Letters of Credit may not be
immediately effected and may be subject to the consent of the beneficiaries of such Several
Letters of Credit. Accordingly, whether or not Several Letters of Credit are amended as
contemplated hereby, the Lenders agree that they shall purchase and sell participations or
otherwise make or effect such payments among themselves (but through the Administrative
Agent) so that payments by the Lenders of drawings under Several Letters of Credit and
payments by the Borrowers of Unreimbursed Amounts and interest thereon are, except as
otherwise expressly set forth herein (including with respect to Limited Fronting Lenders and
Defaulting Lenders), in each case shared by the Lenders in accordance with the Pro Rata
Shares of the Lenders from time to time in effect.




     (v) If an Applicant so requests in any applicable Letter of Credit Application, the
Fronting L/C Issuer or the Several L/C Agent (on behalf of the Lenders), as applicable, will
issue or amend a Letter of Credit (including any Existing Letter of Credit) to provide for
automatic



25









 







extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the Fronting L/C
Issuer or the Several L/C Agent, as applicable, to prevent any such extension by giving
notice to the beneficiary thereof prior to the thirtieth (30th) day preceding the
then current expiration date of such Letter of Credit (the “Non-Extension Notice
Date”). The Applicant (or, if applicable, MetLife as the Co-Applicant) shall not be
required to make a specific request to the Fronting L/C Issuer or the Several L/C Agent, as
applicable, for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized the Fronting L/C Issuer or the
Several L/C Agent, as applicable, to permit the extension of such Letter of Credit to an
expiry date not later than twelve months from the then existing expiry date and in any event
not later than twelve months after the Maturity Date; provided, however,
that the Fronting L/C Issuer or the Several L/C Agent, as applicable, shall not permit any
such extension if (A) the Fronting L/C Issuer or the Several L/C Agent (on behalf of the
Lenders), as applicable, has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) or (iii)
of Section 2.03(a) or otherwise), and the Fronting L/C Issuer or the Several L/C
Agent, as applicable, has provided notice thereof to the Borrowers no later than the
Non-Extension Notice Date, or (B) it has received notice on or before the day that is five
Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender
or any Borrower that one or more of the applicable conditions specified in Section
5.02 is not then satisfied (or, in the case of any Borrower, that such Borrower does not
want such Letter of Credit to be extended), and in each such case directing the Fronting L/C
Issuer or the Several L/C Agent, as applicable, not to permit such extension.




     (vi) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
Fronting L/C Issuer or the Several L/C Agent, as applicable, will also deliver to the
applicable Borrower and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment. Within 15 days after the end of each calendar month, the
Administrative Agent will deliver to each of the Lenders and the Borrowers a written report
setting forth the Letters of Credit that were issued and outstanding as of the last day of
such calendar month.



     (c) Drawings and Reimbursements; Fundings.




     (i) Upon receipt from the beneficiary of any Fronted Letter of Credit of any notice of
a drawing under such Fronted Letter of Credit, the Fronting L/C Issuer shall, promptly and
in any event at least one Business Day before the date (the “Honor Date”) on which
the Fronting L/C Issuer anticipates that payment of such drawing will be made, notify the
applicable Borrower and the Administrative Agent thereof. Not later than 2:30 p.m. on the
Honor Date, so long as the applicable Borrower has received notice of such payment from the
Fronting L/C Issuer or the Administrative Agent by 10:00 a.m. on such Honor Date and,
otherwise, not later than 2:30 p.m. on the following Business Day, the applicable Borrower
shall pay to the Fronting L/C Issuer through the Administrative Agent an amount equal to the
amount of such drawing (such amount, the “Unreimbursed Amount”). If the applicable Borrower
fails to make such payment by the required time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the Unreimbursed Amount, and the amount of such
Lender’s Pro Rata Share thereof. Each Lender shall, upon any notice pursuant to this
Section 2.03(c)(i), in purchase of its participation in such Unreimbursed Amount,
make funds available to the Administrative Agent for the account of the Fronting L/C Issuer
at the Administrative Agent’s Office in an amount equal to such Lender’s Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent. If any Defaulting Lender shall fail to make such



26









 







funds available, any Risk Participation Cash Collateral delivered on account of such
Defaulting Lender for the respective Fronted Letter of Credit shall be applied by the
Administrative Agent to the reimbursement of the Fronting L/C Issuer as required hereunder.
The Administrative Agent shall remit the funds so received or applied to the Fronting L/C
Issuer. Any notice given by the Fronting L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




     (ii) Upon receipt from the beneficiary of any Several Letter of Credit of any notice of
a drawing under such Several Letter of Credit, the Several L/C Agent shall notify the
Administrative Agent, and the Administrative Agent shall notify the applicable Borrower and
the Lenders, thereof, which notices shall be given promptly and in any event at least one
Business Day before the date (also the “Honor Date”) on which the Several L/C Agent
anticipates that payment of such drawing will be made. Not later than 10:00 a.m. on the
Honor Date and without further notice or demand by the Several L/C Agent or the
Administrative Agent, (A) each Lender (including each Limited Fronting Lender) shall make
funds available to the Administrative Agent at the Administrative Agent’s Office in an
amount equal to its Pro Rata Share (and, in the case of each Limited Fronting Lender, the
Pro Rata Share of each applicable Participating L/C Issuer) of the drawing under such
Several Letter of Credit and, (B) in the event a Limited Fronting Lender pays the Pro Rata
Share of a Participating L/C Issuer, such Participating L/C Issuer shall pay such Pro Rata
Share to such Limited Fronting Lender in purchase of its participation in such payment. Not
later than 2:30 p.m. on the Honor Date, so long as the applicable Borrower has received
notice of payment under such Several Letter of Credit from the Several L/C Agent or the
Administrative Agent by 10:00 a.m. on the Honor Date and, otherwise, not later than 2:30
p.m. on the following Business Day the applicable Borrower shall pay to the Lenders through
the Administrative Agent an amount equal to the amount of such drawing (such amount, also
the “Unreimbursed Amount”). Any notice given by the Several L/C Agent or the
Administrative Agent pursuant to this Section 2.03(c)(ii) may be given by telephone
if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




     (iii) In the event the applicable Borrower fails to pay any Unreimbursed Amount as
required by clause (i) or (ii) above, the applicable Borrower shall be
deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Business Day
such Unreimbursed Amount is due in an amount equal to such Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 5.02 (other than the
delivery of a Loan Notice). Each Borrowing made pursuant to this Section
2.03(c)(iii) shall be applied by the Administrative Agent to pay the related
Unreimbursed Amount.




     (iv) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied or for any other reason, such Unreimbursed Amount (together with interest)
shall be immediately due and payable by the applicable Borrower without further demand.




     (v) Notwithstanding the date on which an Unreimbursed Amount is payable by the
applicable Borrower pursuant to Section 2.03(c)(i) or (ii), if an
Unreimbursed Amount is not paid by the applicable Borrower by 2:30 p.m. on the applicable
Honor Date (whether through a Borrowing of Base Rates Loans or otherwise), each Unreimbursed
Amount shall bear interest from the applicable Honor Date to the date that such Unreimbursed
Amount is paid by the



27









 







applicable Borrower (whether through a Borrowing of Base Rates Loans or otherwise) at a
rate equal to the Base Rate plus the Applicable Rate for Base Rate Loans plus 2% per annum.




     (vi) Until a Lender funds its obligation pursuant to this Section 2.03(c),
interest in respect of such Lender’s Pro Rata Share of any Unreimbursed Amount shall be
solely for the account of the Fronting L/C Issuer or the Several L/C Agent (if the Several
L/C Agent has funded on behalf of such Lender, as provided in Section
2.03(c)(viii)), as applicable.




     (vii) Each Lender’s obligation to fund its obligations pursuant to this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Fronting L/C Issuer or the Several L/C Agent, as
applicable, the Administrative Agent, any Borrower, any other Applicant or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Loans pursuant to
this Section 2.03(c) is subject to the conditions set forth in Section 5.02
(other than delivery by the applicable Borrower of a Loan Notice). No such funding by any
Lender shall relieve or otherwise impair the obligation of the applicable Borrower to pay
each Unreimbursed Amount, together with interest as provided herein.




     (viii) If any Lender fails to make available to the Administrative Agent any amount
required to be paid by such Lender pursuant to the foregoing provisions of this Section
2.03(c) by the time specified in Section 2.03(c)(i) or Section
2.03(c)(ii), as applicable, the Fronting L/C Issuer or the Several L/C Agent (to the
extent that the Several L/C Agent shall have funded such amount on behalf of such Lender, it
being understood and agreed that the Several L/C Agent shall have no obligation or liability
to fund any amount under any Several Letter of Credit other than in its capacity as a
Lender), as applicable, shall, through the Administrative Agent, be entitled to recover from
such Lender, on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the
Administrative Agent at a rate per annum equal to the Federal Funds Rate from time to time
in effect. A certificate of the Administrative Agent with respect to any amounts owing
under this clause (viii) shall be conclusive absent manifest error.



     (d) Repayment of Fundings.




     (i) If after any Lender has funded its obligation under Section 2.03(c) in
respect of any drawing under any Letter of Credit, the Administrative Agent receives any
payment (including any payment of interest) in respect of the related Unreimbursed Amount
(whether directly from the applicable Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), then the Administrative Agent will
distribute to such Lender its Pro Rata Share (or other applicable share as provided herein)
thereof (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s funding was outstanding) in the same funds as those received
by the Administrative Agent. If any Lender has not funded its obligation as aforesaid, such
Lender’s Pro Rata Share (or other applicable share as provided herein) of such payment shall
be paid to the Fronting L/C Issuer or the Several L/C Agent (if the Several L/C Agent shall
have funded on behalf of such Lender, as provided in Section 2.03(c)(viii)), as
applicable.




     (ii) If any payment made by the Administrative Agent to the Lenders pursuant to
Section 2.03(d)(i) is required to be returned under any of the circumstances
described in Section 10.06 (including pursuant to any settlement), each Lender shall
pay to the Administrative



28









 







Agent its Pro Rata Share (or other applicable share as provided herein) thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.



     (e) Obligations Absolute. The obligation of the applicable Borrower to pay each
Unreimbursed Amount shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:




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




     (ii) the existence of any claim, counterclaim, set-off, defense or other right that
such Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Fronting L/C Issuer, the Several L/C Agent, any Lender, the
Administrative Agent or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the Fronting L/C Issuer or the Lenders under such 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 Fronting L/C Issuer or the Lenders, as
applicable, under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any proceeding under any
Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, such Borrower or any Subsidiary.



     Each Borrower and any other Applicant shall promptly examine a copy of each Letter of Credit
and each amendment thereto requested by such Borrower and such Applicant that is delivered to it
and, in the event of any claim of noncompliance with such Borrower’s or such Applicant’s
instructions or other irregularity, such Borrower or such Applicant will notify the Fronting L/C
Issuer (with respect to Fronted Letters of Credit) or the Several L/C Agent (with respect to
Several Letters of Credit) within two Business Days of receipt of such Letter of Credit or
amendment. Such Borrower and such Applicant shall be conclusively deemed to have waived any such
claim against the Fronting L/C Issuer, the Several L/C Agent or the Lenders, as applicable, unless
such notice is given as aforesaid.



     (f) Role of Fronting L/C Issuer and Several L/C Agent. Each Lender and each Borrower
agree that, in paying any drawing under a Letter of Credit, neither the Fronting L/C Issuer nor the
Several L/C Agent shall 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.



29









 




Neither the Fronting L/C Issuer nor the Several L/C Agent, any Agent-Related Person nor any of
the respective correspondents, participants or assignees of the Fronting L/C Issuer or the Several
L/C Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any Issuer Document. Each Borrower and any
other Applicant hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other agreement.
None of the Fronting L/C Issuer, the Several L/C Agent, any Agent-Related Person nor any of the
respective correspondents, participants or assignees of the Fronting L/C Issuer or the Several L/C
Agent shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.03(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the applicable Borrower (or any other applicable
Applicant) may have a claim against the Fronting L/C Issuer or the Several L/C Agent, as
applicable, and Fronting L/C Issuer or the Several L/C Agent, as applicable, may be liable to such
Borrower or such Applicant, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by such Borrower or such Applicant which such Borrower
or such Applicant proves were caused primarily by the Fronting L/C Issuer’s or the Several L/C
Agent’s, as applicable, willful misconduct or gross negligence or the Fronting L/C Issuer’s or the
Several L/C Agent’s, as applicable, willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the Fronting L/C Issuer or the Several L/C Agent, as applicable, may accept documents
that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the Fronting L/C Issuer or the Several
L/C Agent, as applicable, shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.




     (g) Cash Collateral. Upon the request of the Administrative Agent (given at the
request or with the consent of the Required Lenders), if, as of the date that is twelve months
after the Maturity Date, any Letter of Credit for any reason remains outstanding and partially or
wholly undrawn, the applicable Borrower shall immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to such Outstanding Amount at such time).
Sections 2.04 and 8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.03, Section 2.04 and
Section 8.02(c), “Cash Collateralize” means to pledge to the Administrative Agent,
for the benefit of the Fronting L/C Issuer and/or the Lenders, as applicable, as collateral for the
L/C Obligations, deposit account balances denominated in Dollars and maintained with the
Administrative Agent pursuant to documentation in form and substance satisfactory to the
Administrative Agent (which documents are hereby consented to by the Lenders). Derivatives of
“Cash Collateralize” shall have corresponding meanings. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the Fronting L/C Issuer or the Lenders, as applicable, a
security interest in all such deposit accounts and all balances therein and all proceeds of the
foregoing delivered by such Borrower as Cash Collateral. Cash Collateral shall be maintained in a
blocked deposit account at Bank of America.



     (h) Applicability of ISP98. Unless otherwise expressly agreed by the Fronting L/C
Issuer or the Several L/C Agent, as applicable, and the applicable Borrower when a Letter of Credit
is issued, the rules of the ISP shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. Each Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share a Letter of Credit fee (the
“Letter of Credit



30









 




Fee”) for each Letter of Credit issued for the account of such Borrower equal to the
Applicable Rate (converted to a daily rate) times the daily maximum amount available to be
drawn under such Letter of Credit. Letter of Credit Fees shall be (i) computed on a quarterly
basis in arrears and (ii) due and payable on the 20th day (or, if such day is not a
Business Day, the next Business Day) of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date, on
the date that is twelve months after the Maturity Date and thereafter on demand. If there is any
change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit
shall be multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall
accrue at the Default Rate.




     (j) Fronting Fee and Documentary and Processing Charges. Each Borrower shall pay
directly to the Fronting L/C Issuer for its own account a fronting fee (converted to a daily rate)
with respect to each Letter of Credit with respect to which it is the Applicant or the Co-Applicant
in the amount specified in the Bank of America Fee Letter, payable on the actual daily maximum
amount available to be drawn under such Letter of Credit. Such fronting fee shall be computed on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the 20th day
(or, if such day is not a Business Day, the next Business Day) of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Maturity Date, on the date that is twelve months after the Maturity Date and thereafter on
demand. In addition, each Borrower shall pay directly to the Fronting L/C Issuer or the Several
L/C Agent, as applicable, for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard and reasonable costs and charges, of the Fronting L/C
Issuer or the Several L/C Agent, as applicable, relating to each Letter of Credit as from time to
time in effect. In respect of any period that, pursuant to Section 2.03(a)(vi) or
Section 2.14, Bank of America acts as a Limited Fronting Lender or as a Confirming Bank for
any Lender that becomes an Affected Lender or a Non-NAIC Approved Bank, as applicable, the Letter
of Credit Fee payable to such Lender shall be reduced by 0.25% per annum (or such lesser percentage
as Bank of America may agree) and Bank of America shall receive the amount of such reduction from
each Borrower for its own account as a fronting fee or confirmation fee, as applicable. In the
event that, pursuant to Section 2.03(a)(vi) or Section 2.14, any other Lender
agrees to act as a Limited Fronting Lender or Confirming Bank for any Lender that becomes an
Affected Lender or a Non-NAIC Approved Bank, such other Lender shall receive such compensation
therefor as such Affected Lender or Non-NAIC Approved Bank and such other Lender may agree.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Letters of Credit Issued for Subsidiaries. MetLife, as Co-Applicant, shall be
obligated to pay each Unreimbursed Amount and accrued interest thereon with respect to each Letter
of Credit that is issued or outstanding hereunder in support of any obligations of, or is for the
account of, any Subsidiary of MetLife (other than Funding). MetLife hereby acknowledges that the
issuance of Letters of Credit for the account of any of its Subsidiaries inures to the benefit of
MetLife, and that MetLife’s business derives substantial benefits from the businesses of such
Subsidiaries.



     2.04. Prepayments.



     (a) Any Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate



31









 




Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base
Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid.
The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s pro rata share of such prepayment. If such notice is given by any
Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the Loans of the
Lenders in accordance with their respective pro rata shares of such prepayment.




     (b) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrowers shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that no
Borrower shall be required to Cash Collateralize the L/C Obligations pursuant to this Section
2.04(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.



     (c) Upon the occurrence of a Change in Control, the Administrative Agent shall, at the request
of the Required Lenders, notify the Borrowers that the Aggregate Commitments and the Commitment of
each Lender shall terminate as of the date of such notice. If such notice of termination has been
requested by the Required Lenders, the Administrative Agent shall also, at that time or later, at
the request of the Required Lenders, additionally notify the Borrowers that they shall prepay the
Outstanding Amount of their Loans and/or Cash Collateralize the Outstanding Amount of their L/C
Obligations, and each Borrower agrees that upon such additional notice, such Borrower will promptly
prepay the Outstanding Amount of its Loans and/or Cash Collateralize the Outstanding Amount of its
L/C Obligations.



     2.05. Termination or Reduction of Commitments. The Borrowers may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments and this Agreement, or from time to time
permanently reduce the Aggregate Commitments under this Agreement; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m. three Business
Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii)
the Borrowers shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayment and/or Cash Collateralization hereunder, the Total
Outstandings would exceed the Aggregate Commitments. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according
to its Pro Rata Share; provided that, during any period in which a Lender is a Defaulting
Lender, the Borrowers may (in their discretion) apply all or any portion to be specified by the
Borrowers of any optional reduction of unused Aggregate Commitments under this Section 2.05
to the unused Commitments of any one or more Defaulting Lenders specified by the Borrowers (which
application may result in a change of the Pro Rata Shares of the Lenders) before applying any
remaining reduction to the unused Commitments of all Lenders in accordance with their Pro Rata
Shares. All fees accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination. Notwithstanding the termination of the
Aggregate Commitments, this Agreement shall not terminate, and the obligations of the Borrowers
under this Agreement shall continue, until all Letters of Credit have expired, been replaced or



32









 




been terminated and each Unreimbursed Amount and all interest, fees and other amounts payable
hereunder have been paid in full.




     2.06. Repayment of Loans; Extension Option. Each Borrower shall repay to each Lender on the
Maturity Date the aggregate principal amount of its Loans outstanding on such date and the
Commitments of the Lenders shall terminate; provided that (a) so long as no Default or
Event of Default has occurred and is continuing on the Maturity Date, (b) the Borrowers notify the
Administrative Agent not less than two Business Days prior to the Maturity Date that they elect to
have the Loans outstanding on the Maturity Date payable on the first anniversary of the Maturity
Date (the “Final Maturity Date”), and (c) on or before the Maturity Date, the Borrowers pay
to the Administrative Agent, for the pro rata account of the Lenders, an extension fee in the
amount of 1% of the principal amount of the Loans outstanding on the Maturity Date, each Borrower
shall repay to each Lender on the Final Maturity Date the aggregate principal amount of the Loans
outstanding on such date. Amounts repaid or prepaid following any such extension may not be
reborrowed.



     2.07. Interest.



     (a) Subject to the provisions of Subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by any Borrower under any
Loan Document is not paid when due (after any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then, upon the request of the Required Lenders, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, each
Borrower shall pay interest on the principal amount of all its outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.08. Fees. In addition to certain fees described in Subsections (i) and (j) of Section
2.03:



     (a) Commitment Fee. The Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of each Lender in accordance with its Pro Rata Share, a



33









 




commitment fee (the “Commitment Fee”) equal to the Applicable Rate (converted to a
daily rate) times the actual daily amount by which the Aggregate Commitments exceed the sum
of (i) the Outstanding Amount of Loans and (ii) the Outstanding Amount of L/C Obligations, subject
to adjustment as provided in clause (c) below. The Commitment Fee shall accrue at all
times during the Availability Period, including at any time during which one or more of the
conditions in Article V is not met, and shall be due and payable quarterly in arrears on
the 20th day (or, if such day is not a Business Day, the next Business Day) of each
March, June, September and December, commencing with the first such date to occur after the Closing
Date, and on the last day of the Availability Period. The Commitment Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.




     (b) Other Fees. The Borrowers shall pay to Banc of America Securities LLC and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Bank of America Fee Letter. The Borrowers shall pay to J.P. Morgan Securities LLC
for its own account fees in the amounts and at the times specified in the JPMorgan Fee Letter. The
Borrowers shall pay to Wells Fargo Securities, LLC for its own account fees in the amounts and at
the times specified in the Wells Fargo Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.



     (c) Defaulting Lenders. No Defaulting Lender shall be entitled to receive any
Commitment Fee pursuant to Section 2.08(a) for any period during which it is a Defaulting Lender
(and the Borrowers shall not be required to pay any such Commitment Fee that would otherwise have
been required to have been paid to such Defaulting Lender). No Defaulting Lender shall be entitled
to receive any Letter of Credit Fee pursuant to Section 2.03(i) for any period during which
it is a Defaulting Lender, (i) if such Defaulting Lender has become a Defaulting Lender pursuant to
clause (a) or (c) of the definition of “Defaulting Lender” or (ii) in respect of
any Letter of Credit with respect to which the Borrowers have provided Risk Participation Cash
Collateral pursuant to Section 2.03(a)(ii)(G) (and in the case of clauses (i) and
(ii), the Borrowers shall not be required to pay any such Letter of Credit Fee that would
otherwise have been required to be paid to such Defaulting Lender), except that, (A) in the case of
a Fronted Letter of Credit, if such Defaulting Lender has become a Defaulting Lender pursuant to
clause (a) or (c) of the definition of “Defaulting Lender” and the Borrowers have
not provided Risk Participation Cash Collateral pursuant to Section 2.03(a)(ii)(G) with
respect to such Letter of Credit, then the Borrowers shall instead pay such Letter of Credit Fee to
the Fronting L/C Issuer, and (B) in the case of a Several Letter of Credit, and whether or not the
Borrowers have provided Risk Participation Cash Collateral pursuant to Section
2.03(a)(ii)(G) with respect to such Letter of Credit, (x) if Bank of America is the Limited
Fronting Lender for such Defaulting Lender with respect to such Letter of Credit, the Borrowers
shall be required to pay to Bank of America a fee equal to 0.25% per annum on the actual daily
maximum amount available to be drawn under such Several Letter of Credit and (y) if another Lender
is the Limited Fronting Lender for such Defaulting Lender with respect to such Several Letter of
Credit, the Borrowers shall pay to such Limited Fronting Lender such fee as the Borrowers may have
agreed to pay in such circumstance.



     2.09. Computation of Interest and Fees. All computations of interest for Base Rate Loans
(including Base Rate Loans determined by reference to the Daily Floating Eurodollar Rate) shall be
made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year). Interest shall accrue on any Unreimbursed Amount for the day on
which such Unreimbursed Amount arises, and shall not accrue on such Unreimbursed Amount, or any
portion thereof, for the day on which such Unreimbursed Amount or such portion is paid. Interest
shall accrue on each Loan for the day



34









 





on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section 2.11(a), bear interest for one day.




     2.10. Evidence of Debt. The Credit Extensions (and the L/C Obligations arising therefrom) made or
participated in by each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and by the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions (and the L/C Obligations arising therefrom) made or
participated in by the Lenders and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the obligation of any Borrower
hereunder to pay all amounts owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, each Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



     2.11. Payments Generally.



     (a) All payments to be made by any Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by any Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:30 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent after 2:30 p.m.
shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.



     (b) If any payment to be made by any Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



     (c) Unless any Borrower or any Lender has notified the Administrative Agent, prior to the date
any payment is required to be made by it to the Administrative Agent hereunder (or, in the case of
a Borrowing of Base Rate Loans, prior to 12:30 p.m. on the date of such Borrowing), that such
Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent
may assume that such Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be required to), in reliance thereon, make available a corresponding amount to
the Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:




     (i) if such Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds at the Federal Funds Rate from time to time in effect;
and



35









 






     (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to such Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum equal to the
Federal Funds Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor
upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent, any Lender or any Borrower or Applicant may have against any
other Lender as a result of any default by such Lender hereunder.



     A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount
owing under this Subsection (c) shall be conclusive, absent manifest error.



     (d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article II, and such funds are
not made available to any Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article V are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in
like funds as received from such Lender) to such Lender, without interest.



     (e) The obligations of the Lenders hereunder to make Loans and to honor drawings under, and to
fund participations in, Letters of Credit are several and not joint. The failure of any Lender to
make any Loan or to fund any such drawing or participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date, and except for
Limited Fronting Lenders with respect to Several Letters of Credit they have issued on behalf of
Affected Lenders on Non-NAIC Approved Banks, no Lender shall be responsible for the failure of any
other Lender to so make its Loan, honor a drawing or purchase its participation.



     (f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in
any particular place or manner or to constitute a representation by any Lender that it has obtained
or will obtain the funds for any Loan or other funding obligation in any particular place or
manner.



     2.12. Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C Obligations held by it
(whether as an issuer or as a participant), any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations in the Loans made or
Letters of Credit issued by them, and/or such subparticipations in the participations in L/C
Obligations held by them, as the case may be, as shall be necessary to cause such purchasing Lender
to share the excess payment in respect of such Loans or such participations, as the case may be,
pro rata with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under any of the circumstances
described in Section 10.06 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with
an amount equal to



36









 




such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying
Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered, without further interest thereon. Each Borrower agrees that any Lender so
purchasing a participation or subparticipation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off, but subject
to Section 10.09) with respect to such participation or subparticipations as fully as if
such Lender were the direct creditor of such Borrower in the amount of such participation or
subparticipation. The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations or subparticipations purchased under
this Section and will in each case notify the Lenders following any such purchases or repayments.
Each Lender that purchases a participation or subparticipation pursuant to this Section shall from
and after such purchase have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the Obligations purchased.




     2.13. Increase in Commitments.



     (a) Notice of Increase. Provided no Event of Default has occurred and is then
continuing and the Borrowers have not theretofore terminated or reduced the Aggregate Commitments
pursuant to Section 2.05, and subject to the terms and conditions of this Section
2.13, upon notice to the Administrative Agent, the Borrowers may increase the Aggregate
Commitments under this Agreement and the “Aggregate Commitments” (as defined therein) under the
Three-Year Credit Agreement to an aggregate amount, after giving effect to all such increases, that
does not exceed $5,000,000,000; provided that each increase shall be in a minimum amount of
$50,000,000. If such increase is to be effected in whole or in part through an increase in the
Commitment of one or more of the existing Lenders (it being agreed that no existing Lender shall be
obligated to increase its Commitment), such notice shall be accompanied by a writing executed by
each existing Lender that has agreed to increase its Commitment, setting forth the amount of its
increased Commitment. If such increase is to be effected in whole or in part through the addition
of one or more Eligible Assignees as new Lenders, the addition of each such Eligible Assignee as a
new Lender shall be subject to the consent of the Administrative Agent, the Fronting L/C Issuer and
the Several L/C Agent (to the extent that such consents would be required under Section
10.07(g) if such Eligible Assignee were an assignee), which consents shall not be unreasonably
withheld or delayed, and such notice shall be accompanied by the written agreement of each such
Eligible Assignee to become a Lender, setting forth the amount of its Commitment.



     (b) Assistance by Administrative Agent. The Administrative Agent agrees to provide
such assistance as the Borrowers may reasonably request in soliciting increased Commitments from
existing Lenders and/or Commitments from Eligible Assignees.



     (c) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrowers shall determine the
effective date (the “Increase Effective Date”) and the final allocation of each increase.
The Administrative Agent shall promptly notify the Borrowers and the Lenders (including any new
Lenders) of the final allocation of such increase and such Increase Effective Date. On or before
such Increase Effective Date, each Eligible Assignee that becomes a new Lender shall execute a
joinder agreement to this Agreement in form and substance reasonably satisfactory to the
Administrative Agent. The Administrative Agent is authorized and directed to amend and distribute
to the Lenders (including any new Lenders) a revised Schedule 2.01 that gives effect to
each increase in the Aggregate Commitments and the allocation thereof among the Lenders (including
any new Lenders). As soon as practicable (with the intention of avoiding or minimizing any
additional amounts payable pursuant to Section 3.05), the applicable Borrower or Borrowers
shall prepay any Loans outstanding on each Increase Effective Date (and pay any additional



37









 




amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in
the Commitments under this Section.




     (d) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.12 or Section 10.01 to the contrary.



     2.14. Non-NAIC Approved Banks. If, on or at any time after the Closing Date, a Lender is not or
ceases to be a NAIC Approved Bank, such Lender shall promptly notify the Administrative Agent and
the Borrowers thereof and, upon the Borrowers’ request, (a) Bank of America will act as the Limited
Fronting Lender for such Lender with respect to any Several Letters of Credit issued during the
period that such Lender is a Non-NAIC Approved Bank (and/or as a Confirming Bank for such Lender
with respect to any Several Letters of Credit issued prior to such Lender becoming an Non-NAIC
Approved Bank), or (b) another Lender that is a NAIC Approved Bank may agree to act as the Limited
Fronting Lender for such Lender with respect to any Several Letters of Credit issued during the
period that such Lender is a Non-NAIC Approved Bank (and/or as a Confirming Bank for such Lender
with respect to any Several Letters of Credit issued prior to such Lender becoming an Non-NAIC
Approved Bank) upon such terms and conditions as such Non-NAIC Approved Bank and such other Lender
may agree. If Bank of America or such other Lender, as applicable, becomes a Confirming Bank, it
shall enter into a confirming bank agreement with such Non-NAIC Approved Bank upon such terms as
the applicable parties may agree (and furnish a copy thereof to the Borrowers and the
Administrative Agent). Each Lender (other than Bank of America) that agrees to act as a Limited
Fronting Lender and/or Confirming Bank for any Non-NAIC Approved Bank shall promptly notify the
Administrative Agent of such agreement and of any termination or expiration of such agreement.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01. Taxes.



     (a) Any and all payments by or on account of any obligation of either Borrower hereunder shall
be made free and clear of and without deduction for any Taxes; provided that if any
Borrower shall be required to deduct any Taxes from such payments, then (i) with respect to
Indemnified Taxes and Other Taxes, the sum payable shall be increased as necessary so that after
making all required deductions of Indemnified Taxes and Other Taxes (including deductions of
Indemnified Taxes and Other Taxes applicable to additional sums payable under this Section) the
Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make such deductions of
Taxes and (iii) such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable Law.



     (b) In addition, each Borrower shall pay any Other Taxes not paid pursuant to Section
3.01(a)(iii) to the relevant Governmental Authority in accordance with applicable Law.



     (c) Without duplication of amounts paid by such Borrower under Section 3.01(a) or
(b), each Borrower shall indemnify the Administrative Agent and each Lender, within thirty
(30) days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with respect to
any payment by or on account of any obligation of such Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest, additions to tax and reasonable expenses arising therefrom or with
respect thereto; provided, that such Borrower shall not be obligated to make a payment
pursuant to this Section 3.01 in respect of penalties, interest and additions to



38









 




tax attributable to any Indemnified Taxes or Other Taxes, if (i) such penalties, interest and
additions to tax are attributable to the failure of the Administrative Agent or such Lender, as the
case may be, to pay amounts paid to the Administrative Agent or such Lender by such Borrower (for
Indemnified Taxes or Other Taxes) to the relevant Governmental Authority within twenty (20) days
after receipt of such payment from such Borrower or (ii) such penalties, interest and additions to
tax are attributable to the gross negligence or willful misconduct of the Administrative Agent or
such Lender, as the case may be. Within forty-five (45) days after the Administrative Agent or
such Lender learns of the imposition of Indemnified Taxes or Other Taxes, such Person shall give
notice to the relevant Borrower of the payment by the Administrative Agent or such Lender, as the
case may be, of such Indemnified Taxes or Other Taxes, and of the assertion by any Governmental
Authority that such Indemnified Taxes or Other Taxes are due and payable, but the failure to give
such notice shall not affect such Borrower’s obligations hereunder to reimburse the Administrative
Agent and such Lender for such Indemnified Taxes or Other Taxes, except that such Borrower shall
not be liable for penalties, interest and other liabilities accrued or incurred after such 45-day
period until such time as it receives the notice contemplated above, after which time it shall be
liable for penalties, interest and other liabilities accrued or incurred prior to or during such
45-day period and accrued or incurred after such receipt. Such Borrower shall not be liable for
any penalties, interest and other liabilities with respect to such Indemnified Taxes or Other Taxes
to the extent it has reimbursed the amount thereof to the Administrative Agent or such Lender, as
the case may be. A certificate as to the amount of such payment or liability with reasonable
supporting detail with respect thereto delivered to the applicable Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.




     (d) Within 30 days after any payment of Indemnified Taxes (or Other Taxes if requested by the
Administrative Agent) by the relevant Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent, provided that nothing in this paragraph shall
require any Borrower to make available its tax returns (or any other information relating to its
Taxes which it deems confidential).



     (e) Each Foreign Lender, before it signs and delivers this Agreement if listed on the
signature pages hereof, or before it becomes a Lender in the case of each other Foreign Lender,
shall provide each Borrower and the Administrative Agent either (i) two accurate, complete and
signed originals of either (x) IRS Form W-8ECI or any successor form, or (y) IRS Form W-8BEN or IRS
Form W-8IMY (on behalf of itself and together with any other supporting documentation that is
required), or any successor form, in each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of interest hereunder free from, or subject to a
reduced rate of withholding of, United States Federal income tax or (ii) in the case of such a
Lender that is entitled to claim exemption from withholding of United States Federal income tax
under Section 871(h) or Section 881(c) of the Code with respect to payments of “portfolio
interest”, (x) a certificate to the effect that such Lender is (A) not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, (B) not a “10 percent shareholder” of any Borrower within the
meaning of Section 881(c)(3)(B) of the Code and (C) not a controlled foreign corporation related to
any Borrower within the meaning of Section 881(c)(3)(C) of the Code and (y) two accurate, complete
and signed copies of IRS Form W-8BEN or IRS Form W-8IMY (on behalf of itself and together with any
other supporting documentation that is required), or any successor Form. Each Foreign Lender shall
deliver renewals or additional copies of such forms (or successor forms) that are required to be
delivered under this Section 3.01(e) on or before the date that such form expires or
becomes obsolete. Each Lender that is not a Foreign Lender shall provide each Borrower and the
Administrative Agent, and the Administrative Agent shall provide each Borrower, with two accurate,
complete and signed originals of the IRS Form W-9, properly certifying a complete exemption from
U.S. backup withholding tax.



39









 





     (f) Each Lender on or prior to the date on which such Lender becomes a Lender hereunder, and
from time to time thereafter, either upon the request of the Administrative Agent, either Borrower,
or upon the expiration or obsolescence of any previously delivered documentation, shall furnish to
the Administrative Agent and the Borrowers any documentation that is required under the Code or
applicable Treasury regulations (including any documentation that is required as a result of a
change in law occurring after the date hereof) to enable the Borrowers or the Administrative Agent
to determine and execute their respective obligations, duties and liabilities with respect to
FATCA, including but not limited to any Taxes any of them may be required to withhold in respect of
FATCA.



     (g) The Administrative Agent shall, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with respect to which the
Borrowers are not required to pay additional amounts under this Section 3.01.



     (h) If the IRS or any other Governmental Authority asserts a claim that the Administrative
Agent or any Borrower did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which rendered its exemption
from withholding ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent or such Borrower, as the case may be, fully for all amounts paid, directly or
indirectly, by the Administrative Agent or such Borrower, as the case may be, as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent or such Borrower, as the case may be
under this paragraph (h), together with all costs and expenses related thereto (including
attorneys’ fees and time charges of attorneys for the Administrative Agent or such Borrower, as the
case may be, which attorneys may be employees of the Administrative Agent or such Borrower, as the
case may be). The obligations of the Lenders under this paragraph (h) shall survive the payment of
the Obligations and the termination of this Agreement.



     (i) If the Administrative Agent or any Lender determines, in its good faith judgment, that it
has actually received or realized any refund of tax or any reduction of its tax liabilities or
otherwise recovered any amount in connection with any deduction or withholding or payment of any
additional amount by any Borrower pursuant to Section 3.04 or this Section 3.01,
such Person shall reimburse such Borrower within 45 days in an amount equal to the net benefit,
after tax, of such refund, reduction or recovery, and net of all reasonable out-of-pocket expenses
incurred by such Person in connection with such refund, reduction or recovery; provided,
that nothing in this paragraph (i) shall require any Person to make available its tax returns (or
any other information relating to its taxes which it deems to be confidential). In the event that
the reimbursement described in the preceding sentence is determined to have been paid to any
Borrower in error, such Borrower shall return such amount to the applicable Person within 45 days
of when such Person is required to repay such refund of tax or is not entitled to such reduction
of, or credit against, its tax liabilities. If the Administrative Agent or any Lender shall become
aware that it is entitled to receive a refund or direct credit in respect of Indemnified Taxes or
Other Taxes as to which it has been indemnified by any Borrower or with respect to which any
Borrower has paid additional amounts, it shall promptly notify such Borrower of the availability of
such refund or direct credit and shall, within 45 days after receipt of a request for such by such
Borrower (whether as a result of notification that it has made of such to such Borrower or
otherwise), make a claim to such Governmental Authority for such refund or direct credit and
contest such Indemnified Taxes, Other Taxes or liabilities if (i) such Borrower has agreed in
writing to pay all of such Lender’s or the Administrative Agent’s reasonable out-of-pocket costs
and expenses relating to such claim or contest, and (ii) such Lender or the Administrative Agent
determines, in its good faith judgment, that it would not be materially disadvantaged or prejudiced
as a result of such claim or contest (it being understood that the mere existence of fees, charges,
costs or expenses that such Borrower has offered and agreed to pay on behalf



40









 




of such Lender or the Administrative Agent shall not be deemed to be materially
disadvantageous to such Person).




     (j) Notwithstanding any other provision, the Borrowers shall not be required to indemnify or
make any additional payment under this Agreement to any Person with respect to any Excluded Taxes.



     3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, then, on notice thereof by such Lender to the applicable Borrower
through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate
Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and such Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from
such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all its
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate
Loans. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.



     3.03. Inability to Determine Rates. If the Required Lenders determine that for any reason adequate
and reasonable means do not exist for determining the Eurodollar Base Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Borrowing, or that the Eurodollar Base
Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Borrowing does
not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrowers and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice,
any Borrower may revoke any pending request by it for a Borrowing of, conversion to or continuation
of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves.



     (a) If any Lender determines that as a result of the introduction of or any change in or in
the interpretation by any Governmental Authority of any Law after the Closing Date, or such
Lender’s compliance with any request, guideline or directive of any Governmental Authority made or
issued after the Closing Date, there shall be any increase in the cost to such Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of this Subsection (a) any
such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to which
Section 3.01 shall govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any political subdivision
of either thereof under the Laws of which such Lender is organized, or in which its principal
office is located or has its Lending Office (or in the case of a jurisdiction (or any political
subdivision thereof) that imposes taxes on the basis of management or control or other concept of
principal office or residence, the jurisdiction (or any political subdivision thereof) in which
such Lender is so resident), and (iii) reserve requirements utilized, as to Eurodollar Rate



41









 




Loans, in the determination of the Eurodollar Rate or reserves described in Section
3.04(c)), then from time to time within thirty days after demand of such Lender (with a copy of
such demand to the Administrative Agent) in accordance with Section 3.06, the applicable
Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.




     (b) If any Lender determines that the introduction of any Law regarding capital adequacy or
any change therein or in the interpretation by any Governmental Authority thereof, or compliance by
such Lender (or its Lending Office) with any request, guideline or directive of any Governmental
Authority made or issued after the Closing Date, has the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of such
Lender’s obligations hereunder (taking into consideration its policies with respect to capital
adequacy and such Lender’s desired return on capital), then from time to time within thirty days
after demand of such Lender (with a copy of such demand to the Administrative Agent) in accordance
with Section 3.06, the Borrowers shall jointly and severally pay to such Lender such
additional amounts as will compensate such Lender for such reduction.



     (c) The Daily Floating Eurodollar Rate shall be adjusted by the Administrative Agent to
reflect the actual cost of any required reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or liabilities (as determined by the Administrative Agent in
good faith, which determination shall be conclusive).



     3.05. Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, each Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense (excluding any loss of anticipated profits or loss of
margin) incurred by it as a result of:



     (a) except as a result of circumstances set forth in Section 3.02, any continuation,
conversion, payment or prepayment of any Loan to it other than a Base Rate Loan on a day other than
the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration or otherwise);



     (b) any failure by such Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by such Borrower; or



     (c) any assignment of a Eurodollar Rate Loan (except by a Defaulting Lender) on a day other
than the last day of the Interest Period therefor as a result of a request by such Borrower
pursuant to Section 10.15;



     including any loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from which such funds
were obtained.



     For purposes of calculating amounts payable by any Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



     3.06. Matters Applicable to all Requests for Compensation.



42









 





     (a) A certificate of the Administrative Agent or any Lender claiming compensation under this
Article III and setting forth in reasonable detail the basis for such claim and a
calculation of the additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.



     (b) Upon any Lender’s making a claim for compensation under Section 3.01 or
3.04, the Borrowers may replace such Lender in accordance with Section 10.15.



     3.07. Survival. All of the Borrowers’ obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

REPRESENTATIONS AND WARRANTIES




     On the Closing Date and, except with respect to Section 4.04(c) and Section
4.06, on the date of each Borrowing or L/C Credit Extension, each Borrower represents and
warrants to the Lenders, as to itself and its Subsidiaries, as applicable, that:



     4.01. Organization; Powers. MetLife and each of its Material Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Change, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.



     4.02. Authorization; Enforceability. The Transactions are within each Borrower’s corporate powers
and have been duly authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by each Borrower and constitutes a legal, valid and binding obligation of
each Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law. The Support Agreement (a true and correct copy of which has been made available to the
Lenders) has been duly executed and delivered by and constitutes a legal, valid and binding
obligation of the Company and Funding, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



     4.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or
approval of, registration or filing with, or any other action by, any Governmental Authority except
such as have been obtained or made and are in full force and effect, (b) will not violate (i) the
charter, by-laws or other organizational documents of any Borrower or (ii) any law, rule or
regulation or any order of any Governmental Authority applicable to any Borrower, and (c) will not
violate or result in a default under any indenture, agreement or other instrument binding upon any
Borrower or its assets, or give rise to a right thereunder to require any payment to be made by any
Borrower, except, in the case of clauses (b)(ii) and (c) above, to the extent that
such violations or defaults, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Change.



     4.04. Financial Condition; No Material Adverse Change.



     (a) MetLife has heretofore furnished to the Lenders its audited consolidated balance sheet and
statements of earnings, equity and cash flows as of and for the fiscal year ended December 31,
2009,



43









 




reported on by independent public accountants. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash flows of MetLife
and its Consolidated Subsidiaries, as of the date thereof and for such fiscal year, in accordance
with GAAP.




     (b) MetLife has heretofore furnished to each of the Lenders the annual Statutory Statement of
the Company as at and for the year ended December 31, 2009, as filed with the Applicable Insurance
Regulatory Authority. Such Statutory Statement presents fairly, in all material respects, the
financial position and results of operations of the Company, as of the date thereof and for such
year, in accordance with SAP.



     (c) Since December 31, 2009, there has been no material adverse change in the business,
assets, property or financial condition of MetLife and its Subsidiaries taken as a whole from that
set forth in the respective financial statements referred to in Sections 4.04(a) and
4.04(b).



     4.05. Properties.



     (a) MetLife and each of its Material Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business, except for defects in
title that, individually or in the aggregate, would not reasonably be expected to result in a
Material Adverse Change.



     (b) MetLife and each of its Material Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by MetLife and its Material Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Change.



     4.06. Litigation and Environmental Matters.



     (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of any Borrower, threatened against or affecting
MetLife or any of its Material Subsidiaries (i) as to which there would reasonably be expected to
be an adverse determination and that, if adversely determined, would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Change (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.



     (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Change, neither MetLife nor any of its Material Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability, or (iv) knows of any
basis for any Environmental Liability.



     4.07. Compliance with Laws and Agreements. Each of MetLife and its Material Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Change. No Default has occurred and is continuing.



     4.08. Investment Company Status. Neither MetLife nor any of its Material Subsidiaries (other than
Funding) is an “investment company” as defined in, or subject to regulation under, the



44









 




Investment Company Act of 1940, and Funding is an “investment company” as defined in such Act that
is exempt from all of the provisions of such Act.




     4.09. Taxes. Each of MetLife and its Subsidiaries has timely filed or caused to be filed all tax
returns and reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which MetLife or such Subsidiary, as applicable, has set aside on
its books adequate reserves or (b) to the extent that the failure to do so would not reasonably be
expected to result in a Material Adverse Change.



     4.10. ERISA. (a) Each Plan is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable provisions of ERISA, the
Code and any other Federal or State law; (b) neither Borrower nor any ERISA Affiliate thereof has,
or at any time during the five immediately preceding plan years has had, an obligation to
contribute to a Multiemployer Plan, has completely or partially withdrawn from a Multiemployer
Plan; or has any Withdrawal Liability, contingent or otherwise, to a Multiemployer Plan; and (c) no
ERISA Event has occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably expected to occur, would reasonably be
expected to result in a Material Adverse Change.



     4.11. Disclosure. None of the reports, financial statements, certificates or other information
furnished by or on behalf of the Borrowers to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that with respect to projected financial information,
the Borrowers represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time (it being understood that such projections and
forecasts are subject to uncertainties and contingencies and no assurances can be given that such
projections or forecasts will be realized).



     4.12. Margin Stock. No part of the proceeds of any Loan made hereunder and no Letter of Credit
issued hereunder will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the FRB, including Regulations U and X. After the
application of the proceeds of any Loan made hereunder or the use of any Letter of Credit issued
hereunder, not more than 25% of the value (as determined by any reasonable method) of the assets of
any of the Borrowers is represented by Margin Stock.



ARTICLE V.

CONDITIONS TO CREDIT EXTENSIONS




     5.01. Closing Date. The obligations of the Lenders to make Loans and of the Fronting L/C Issuer
and the Lenders to make L/C Credit Extensions hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or waived in accordance with Section
10.01):



     (a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



     (b) The Administrative Agent shall have received opinions, addressed to it and the Lenders and
dated the Closing Date, of counsel to the Borrowers, substantially in the form of Exhibit
D-1 and



45









 




Exhibit D-2, and covering such other matters relating to the Borrowers, this Agreement
or the Transactions as the Required Lenders shall reasonably request. The Borrowers hereby request
such counsel to deliver such opinions.




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



     (d) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Closing Date, including, all upfront fees payable to the Lenders and to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrowers hereunder.



     (e) The Existing Credit Agreements shall have been terminated and all obligations thereunder
(other than the Existing Letters of Credit) shall have been repaid in full.


The Administrative Agent shall notify the Borrowers and the Lenders of the Closing Date, and such
notice shall be conclusive and binding.




     5.02. Each Credit Event. The obligation of each Lender to make any Loan or of the Fronting L/C
Issuer and each Lender, as applicable, to make any L/C Credit Extension is subject to the
satisfaction of the following conditions:



     (a) The representations and warranties of each of the Borrowers set forth in this Agreement
(other than, after the Closing Date, in Section 4.04(c) and in Section 4.06) shall
be true and correct on and as of the date of such Borrowing or L/C Credit Extension.



     (b) At the time of and immediately after giving effect to such Borrowing or L/C Credit
Extension, no Default shall have occurred and be continuing.



     (c) At the time of and immediately after giving effect to such Borrowing or L/C Credit
Extension, no default or event or condition which constitutes a default or which upon notice, lapse
of time or both would, unless cured or waived, become a default shall have occurred and be
continuing under the Support Agreement.



     (d) The applicable Borrower is authorized to perform its obligations in respect of the
proposed Borrowing or L/C Credit Extension.



     Each Borrowing or L/C Credit Extension shall be deemed to constitute a representation and
warranty by each Borrower on the date thereof as to the matters specified in paragraphs (a), (b)
and (c) of this Section.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     Until the Commitments and all Letters of Credit have expired or been terminated and the
principal of and interest on each Loan and each Unreimbursed Amount and all interest and fees
payable hereunder shall have been paid in full, each Borrower covenants and agrees with the Lenders
that:



46









 





     6.01. Financial Statements and Other Information. MetLife will furnish to the Administrative Agent
and each Lender:



     (a) (i) as soon as available, but not later than 60 days (or such other period as may be
prescribed under the Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC thereunder) after the end of each fiscal year of MetLife, copies of MetLife’s annual report
on Form 10-K as filed with the SEC for such fiscal year; and (ii) as soon as available, but not
later than 40 days (or such other period as may be prescribed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC thereunder) after the end of each of the
first three fiscal quarters of each fiscal year of MetLife, copies of MetLife’s quarterly report
on Form 10-Q as filed with the SEC for such fiscal quarter, in each case certified by an
appropriate Financial Officer as being the complete and correct copies of the statements on such
forms furnished by MetLife to the SEC, it being understood that, in each case, the Administrative
Agent shall be entitled to rely on any certification pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002, as amended, by the chief financial officer of MetLife that accompanies such annual and
quarterly reports;



     (b) concurrently with any delivery of financial statements under clause (a) above or
clause (c) or (d) below, a certificate of a Financial Officer of MetLife (i)
certifying as to whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Sections 7.04
(provided that statements delivered under clause (c) or (d) below shall not be
required to be accompanied by such calculations), and (iii) stating whether any change in GAAP or
SAP, as the case may be, or in the application thereof has occurred since the date of the most
recently delivered financial statements and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such certificate;



     (c) within five days after filing with the Applicable Insurance Regulatory Authority and in
any event within 60 days after the end of each year, the annual Statutory Statement of the Company
for such year, certified by one of its Financial Officers as presenting fairly in all material
respects the financial position of the Company for such year in accordance with SAP;



     (d) within five days after filing with the Applicable Insurance Regulatory Authority and in
any event within 60 days after the end of each of the first three quarterly periods of each year,
the quarterly Statutory Statement of the Company for such period, certified by one of its Financial
Officers as presenting fairly in all material respects the financial position of the Company for
such period in accordance with SAP;



     (e) within five days after any change in a Debt Rating for MetLife, notice of such change;



     (f) within ten days after knowledge of the occurrence of any ERISA Event, a description of
such ERISA Event; and



     (g) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of MetLife or any of its Material Subsidiaries, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.



     Documents required to be delivered pursuant to Section 4.04 or Section 6.01
(to the extent any such documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website
on the Internet at the website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrowers’ behalf on an



47









 




Internet or intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: the Borrowers shall notify (which may be by facsimile or
electronic mail) the Administrative Agent of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be
required to provide paper copies or copies in pdf format of the certificate required by Section
6.01(b) to the Administrative Agent. Except for such certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrowers with
any such request for delivery, and each Lender shall be solely responsible for requesting delivery
to it or maintaining its copies of such documents.




     The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders, the Fronting L/C Issuer and the Several L/C Agent materials and/or
information provided by or on behalf of the Borrowers hereunder (collectively, the “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”)
may have personnel who do not wish to receive material non-public information with respect to the
Borrowers or its Affiliates, or the respective securities of any of the foregoing, and who may be
engaged in investment and other market-related activities with respect to such Persons’ securities.
The Borrowers hereby agree that (i) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower
Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the
Arrangers, the Fronting L/C Issuer, the Several L/C Agent and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to the Borrowers or
their securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.08); (iii) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor;” and
(iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor”.



     6.02. Notices of Defaults. The Borrowers will furnish to the Administrative Agent and each Lender
prompt written notice of the occurrence of any Default. Each such notice shall be accompanied by a
statement of a Financial Officer or other executive officer of MetLife setting forth the details of
the event or development requiring such notice and any action taken or proposed to be taken with
respect thereto.



     6.03. Existence; Conduct of Business. MetLife will, and will cause each of its Material
Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business, other than those whose loss, in each case, would not
reasonably be expected to result in a Material Adverse Change; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation, dissolution or other transaction
permitted under Section 7.02.



     6.04. Payment of Obligations. MetLife will, and will cause each of its Material Subsidiaries to,
pay, before the same shall become delinquent or in default, its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Change, except where (a) the
validity or amount thereof is being contested in good faith by appropriate proceedings, (b) MetLife
or such Material Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and



48









 




(c) the failure to make payment pending such contest would not reasonably be expected to result in
a Material Adverse Change.




     6.05. Maintenance of Properties; Insurance. MetLife will, and will cause each of its Material
Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good
working order and condition (ordinary wear and tear excepted) except to the extent that failure to
do so could not be reasonably expected to result in a Material Adverse Change, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies of similar size engaged in the same or
similar businesses operating in the same or similar locations.



     6.06. Books and Records; Inspection Rights. MetLife will, and will cause each of its Material
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and activities. MetLife
will, and will cause each of its Material Subsidiaries to, permit any representative designated by
the Administrative Agent (and, if a Default shall have occurred and be continuing, any
representatives reasonably designated by any Lender), upon reasonable prior notice and during
normal business hours, to visit and inspect its properties, to examine and make extracts from its
books and records, and to discuss its affairs, finances and condition (insofar as they relate to
this Agreement) with its officers and independent accountants, all at such reasonable times and as
often as reasonably requested. Such inspection rights are subject to the provisions of Section
10.08 and applicable Law and shall not extend to trade secrets of MetLife or its Subsidiaries,
to information covered by attorney-client or other privilege or to information subject to third
party confidentiality agreements or privacy rights.



     6.07. Compliance with Laws. MetLife will, and will cause each of its Material Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it
or its property, except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Change.



     6.08. Use of Proceeds. The proceeds of the Loans made hereunder and the Letters of Credit issued
hereunder will be used only for the general corporate purposes (including, without limitation, in
the case of Loans, to back up commercial paper and, in the case of Letters of Credit, to support
variable annuity policy and reinsurance reserve requirements) of MetLife and its Subsidiaries in
the ordinary course of business; provided that no part of the proceeds of any Loan or any
Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the FRB, including Regulations U and X; provided
further that neither the Administrative Agent nor any Lender shall have any responsibility
as to the use of any such proceeds.



     6.09. Support Agreement. Funding will, and MetLife will cause the Company to, (a) maintain the
Support Agreement in full force and effect, and comply with the provisions thereof, and (b) not
modify, supplement or waive any of its provisions without the prior consent of the Administrative
Agent (with the approval of the Required Lenders); provided that any modification,
supplement or waiver that reduces or impairs the support provided to Funding shall require the
approval of all Lenders.



ARTICLE VII.

NEGATIVE COVENANTS




     Until the Commitments and all Letters of Credit have expired or terminated and the principal
of and interest on each Loan and each Unreimbursed Amount and all interest and fees payable
hereunder have been paid in full, each Borrower covenants and agrees with the Lenders that:



49









 





     7.01. Liens. Neither of the Borrowers will create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof (other than any
assignment or sale of such income, revenues or rights in connection with the sale, assignment or
transfer of the underlying property or asset), except:



     (a) Permitted Encumbrances and Liens, if any, provided hereunder (including with respect to
Cash Collateral and Risk Participation Cash Collateral);



     (b) any Lien existing on any property or asset prior to the acquisition thereof by such
Borrower; provided that (i) such Lien is not created in contemplation of or in connection
with such acquisition, (ii) such Lien shall not apply to any other property or assets of such
Borrower, and (iii) such Lien shall secure only those obligations which it secures on the date of
such acquisition;



     (c) Liens on assets acquired, constructed or improved by such Borrower; provided that
(i) such Liens and the Indebtedness secured thereby are incurred prior to or within 360 days after
such acquisition or the completion of such construction or improvement, (ii) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or improving such assets, and
(iii) such Liens shall not apply to any other property or assets of such Borrower;



     (d) Liens on any property or assets of any Person existing at the time such Person is merged
or consolidated with or into such Borrower, and not created in contemplation of such event;



     (e) Liens on any real property and personal property relating thereto securing Indebtedness in
respect of which (i) the recourse of the holder of such Indebtedness (whether direct or indirect
and whether contingent or otherwise) under the instrument creating the Lien or providing for the
Indebtedness secured by the Lien is limited to such real property and personal property relating
thereto directly securing such Indebtedness or (ii) such holder may not under the instrument
creating the Lien or providing for the Indebtedness secured by the Lien collect by levy of
execution or otherwise against assets or property of such Borrower (other than such real property
and personal property relating thereto directly securing such Indebtedness) if such Borrower fails
to pay such Indebtedness when due and such holder obtains a judgment with respect thereto, except
for recourse obligations that are customary in “non-recourse” real estate transactions;



     (f) Liens arising out of Securities Transactions entered into in the ordinary course of
business and on ordinary business terms;



     (g) Liens arising out of any real estate sale/leaseback transactions;



     (h) Liens arising in connection with Swap Contracts;



     (i) Liens on securities owned by such Borrower which are pledged to the Federal Home Loan Bank
Board (the “FHLBB”) to secure loans made by the FHLBB to such Borrower in the ordinary
course of business and on ordinary business terms;



     (j) Liens on securities owned by, or obligations owed to, such Borrower that directly or
indirectly secure funding agreements issued by MetLife or any Subsidiary of MetLife (each a
“MetLife Entity”), which funding agreements directly or indirectly secure, or provide for,
the repayment of amounts that a MetLife Entity has received from the proceeds of securities issued
by a special-purpose vehicle formed for the purpose of issuing such securities; provided that at
the time of issuance such securities had a rating by a nationally recognized rating agency higher
than that which unsecured long-



50









 




term debt securities issued by the MetLife Entity that is the issuer of the applicable funding
agreement would have had;




     (k) Liens on cash or securities owned by such Borrower that directly or indirectly secure
demand notes executed and contributed by such Borrower to brokers or dealers that are Affiliates of
MetLife, which demand notes evidence obligations of such Borrower to provide funds to such brokers
or dealers for the purpose of enabling such brokers or dealers to satisfy net capital requirements
established by applicable Law;



     (l) Liens, assignments or sales not otherwise permitted by this Section 7.01 arising
in the ordinary course of the business of such Borrower that do not secure any Indebtedness;
provided that the obligations secured by such Liens shall not exceed $4,200,000,000 at any
one time outstanding;



     (m) Liens, assignments or sales not otherwise permitted by this Section 7.01;
provided that the aggregate principal amount of the Indebtedness secured by such Liens
shall not exceed $5,400,000,000 at any one time outstanding; and



     (n) any extension, renewal or replacement of the foregoing; provided that the Liens
permitted hereunder shall not be spread to cover any additional Indebtedness or assets (other than
a substitution of like assets) unless such additional Indebtedness or assets would have been
permitted in connection with the original creation, incurrence or assumption of such Lien.



     7.02. Fundamental Changes.



     (a) No Borrower will, and MetLife will not permit the Company to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets (excluding (i) assets sold or disposed of in the ordinary course of
business and (ii) assets sold or disposed of between or among MetLife and its direct and indirect
wholly-owned Subsidiaries), or (in the case of MetLife) all or any substantial part of the stock of
Funding or the Company (in each case whether now owned or hereafter acquired), or liquidate or
dissolve; provided, however, that all or a substantial part of the stock of Funding may be
transferred so long as it remains directly or indirectly held by MetLife; and provided
further, that, if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing (A) any Subsidiary of a Borrower or the Company, as
the case may be, may merge into such Borrower or the Company, as the case may be, in a transaction
in which such Borrower or the Company, as the case may be, is the surviving corporation, (B)
Funding may sell, transfer, lease or otherwise dispose of its assets to MetLife or the Company,
including via liquidation, so long as MetLife or the Company expressly assumes the obligations of
Funding hereunder and under any promissory notes issued hereunder, and (C) a Borrower or the
Company, as the case may be, may merge or consolidate with any other Person if such Borrower or the
Company, as the case may be, is the surviving corporation.



     (b) MetLife will not, and will not permit any of its Material Subsidiaries to, engage to any
material extent in any business other than (i) businesses of the type conducted by MetLife or any
of its Subsidiaries (or, upon its acquisition, by Alico or any of its subsidiaries) on the date of
execution of this Agreement and businesses reasonably related thereto and (ii) businesses financial
in nature.


7.03. Transactions with Affiliates. MetLife will not, and will not permit any of its Material
Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other transactions (other
than service arrangements) with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on






51









 







terms and conditions not less favorable to MetLife or such Material Subsidiary than could be
obtained on an arm’s length basis from unrelated third parties, and (b) transactions between or
among MetLife and its direct or indirect Subsidiaries.




     7.04. Consolidated Net Worth. MetLife will not permit its Consolidated Net Worth, calculated as of
the last day of each fiscal quarter, to be less than $29,000,000,000.



ARTICLE VIII.

EVENTS OF DEFAULT




     8.01. Events of Default. If any of the following events (“Events of Default”) shall occur:



     (a) any Borrower shall fail to pay any principal of any Loan made to it when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise or shall fail to pay any Unreimbursed Amount at or prior to the time such
payment is due;



     (b) any Borrower shall fail to pay any interest on any Loan made to it or on any Unreimbursed
Amount owing by it or any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five or more Business Days;



     (c) any representation or warranty made or deemed made by or on behalf of MetLife or any of
its Material Subsidiaries in or in connection with this Agreement or any amendment or modification
hereof or waiver hereunder, or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any amendment or modification hereof
or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed
made;



     (d) (i) any Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 6.01, 6.02 or 6.06, and such failure shall continue
unremedied for a period of five Business Days after notice thereof from the Administrative Agent to
the relevant Borrower (which notice will be given at the request of any Lender); or (ii) any
Borrower shall fail to observe or perform any covenant, condition or agreement contained in
Section 6.03 or 6.09 or in Article VII;



     (e) any Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the relevant Borrower (which notice will be
given at the request of any Lender);



     (f) MetLife or any of its Material Subsidiaries (i) shall fail to make any payment (whether of
principal or interest and regardless of amount) on Material Indebtedness, when and as the same
shall become due and payable and such failure shall continue after (A) the end of the grace period
for such payment if such payment has a grace period or (B) two Business Days after MetLife or such
Material Subsidiary is given notice of such failure if such payment does not have a grace period,
(ii) shall fail to make when due one or more required payments under one or more Swap Contracts, as
to which an Early Termination has not occurred, in an aggregate amount exceeding $100,000,000, if
MetLife or such Material Subsidiary would owe a Material Unpaid Swap Indebtedness in an aggregate
principal amount exceeding $750,000,000 upon an Early Termination of such Swap Contracts, and such
failure shall continue after (A) the end of the grace period for such payment if such payment has a
grace period or (B) two Business Days after MetLife or such Material Subsidiary is given notice of
such failure if such payment does not have a grace period (for the avoidance of doubt, excluding
any amount the payment of which is being disputed by MetLife or such Material Subsidiary in good
faith in accordance with the



52









 




dispute resolution procedures provided for in connection with such Swap Contracts, so long as
adequate reserves with respect thereto are set aside in accordance with GAAP), or (iii) shall fail
to pay when due Material Unpaid Swap Indebtedness in an aggregate principal amount exceeding
$750,000,000;




     (g) any event or condition occurs that results in Material Indebtedness of MetLife or any of
its Material Subsidiaries becoming due prior to the scheduled maturity of such Material
Indebtedness; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness;



     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of MetLife or any of its
Material Subsidiaries or its debts, or of a substantial part of its assets, under any Debtor Relief
Laws now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for MetLife or any or its Material Subsidiaries or
for a substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;



     (i) MetLife or any of its Material Subsidiaries shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief
Laws now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for MetLife or any or its Material Subsidiaries or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the foregoing;



     (j) MetLife or any of its Material Subsidiaries shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;



     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$750,000,000 (or its equivalent in any other currency) shall be rendered against MetLife, any
Material Subsidiary of MetLife or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be effectively stayed;



     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
result in an accrued liability of MetLife and its Material Subsidiaries in an aggregate amount
exceeding $750,000,000 (calculated using methods employed under ERISA for purposes of determining
the amount of additional funding required) in any year; or



     (m) an “Event of Default” (as defined therein) shall occur and be continuing under the
Three-Year Credit Agreement.



     8.02. Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
with notice to the Borrowers, take any or all of the following actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the Fronting L/C
Issuer or each Lender, as applicable, to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated;



53









 





     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrowers;



     (c) require that each Borrower Cash Collateralize its L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable Law;



     provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans to any Borrower and any obligation of the Fronting L/C
Issuer or each Lender, as applicable, to make L/C Credit Extensions to the Borrowers shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.



     8.03. Application of Funds. After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable and the L/C Obligations
have automatically been required to be Cash Collateralized as set forth in the proviso to
Section 8.02), any amounts received on account of the Obligations of any Borrower shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of such Borrower’s Obligations constituting fees,
indemnities, expenses and other amounts (including all fees, expenses and disbursements of counsel
and amounts payable under Article III) payable to the Administrative Agent in its capacity
as such;



     Second, to payment of that portion of such Borrower’s Obligations constituting fees,
indemnities and other amounts (other than principal, interest, Commitment Fees and Letter of Credit
Fees) payable to the Lenders (including all fees, expenses and disbursements of counsel and amounts
payable under Article III), ratably among them in proportion to the respective amounts
described in this clause Second payable to them;



     Third, to payment of that portion of such Borrower’s Obligations constituting accrued
Letter of Credit Fees, Commitment Fees and unpaid interest on the Loans and any Unreimbursed
Amounts, ratably among the Lenders in proportion to the respective amounts described in this clause
Third payable to them;



     Fourth, to payment of that portion of such Borrower’s Obligations constituting unpaid
principal of the Loans and any Unreimbursed Amounts, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the Fronting L/C Issuer or the
Lenders, as applicable, to Cash Collateralize that portion of such Borrower’s L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full,
to such Borrower or as otherwise required by Law.



54









 





     Amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant
to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01. Appointment and Authorization of Administrative Agent.



     (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender or Participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties.



     (b) The Fronting L/C Issuer and the Several L/C Agent, as applicable, shall act on behalf of
the Lenders with respect to the Fronted Letters of Credit or the Several Letters of Credit, as
applicable, and the documents associated therewith, and the Fronting L/C Issuer and the Several L/C
Agent, as applicable, shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts taken or omissions
suffered by the Fronting L/C Issuer or the Several L/C Agent, as applicable, in connection with
Letters of Credit issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in this Article IX and in the definition of “Agent-Related Person” included
the Fronting L/C Issuer and the Several L/C Agent with respect to such acts or omissions, and (ii)
as additionally provided herein with respect to the Fronting L/C Issuer and the Several L/C Agent,
as applicable.



     9.02. Delegation of Duties. The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel and other consultants or experts concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible to the Lenders for the
negligence or misconduct of any agent or attorney-in-fact selected by the Administrative Agent in
good faith after due inquiry.



     9.03. Liability of Administrative Agent. No Agent-Related Person shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct in connection with its duties expressly set forth herein), or (b)
be responsible in any manner to any Lender or Participant for any recital, statement,
representation or warranty made by any Borrower or any officer thereof, contained herein or in any
other Loan Document, or in any certificate,



55









 




report, statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of any Borrower or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or Participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of any Borrower or any Affiliate
thereof.




     9.04. Reliance by Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to any Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.



     (b) For purposes of determining compliance with the conditions specified in Section
5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the Closing Date specifying its
objection thereto.



     9.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the account of the Lenders or
the Fronting L/C Issuer or the Several L/C Agent, as applicable, unless the Administrative Agent
shall have received written notice from a Lender or a Borrower referring to this Agreement,
describing such Default and stating that such notice is a “notice of default.” The Administrative
Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall
take such action with respect to such Default as may be directed by the Required Lenders in
accordance with Article VIII; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with respect to such Default
as it shall deem advisable or in the best interest of the Lenders.



     9.06. Credit Decision; Disclosure of Information by Administrative Agent. Each Lender acknowledges
that no Agent-Related Person has made any representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Borrower or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their possession. Each Lender



56









 




represents to the Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrowers and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to
the Borrowers hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the Borrowers or any of their
respective Affiliates which may come into the possession of any Agent-Related Person.




     9.07. Indemnification of Administrative Agent. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Borrower and without limiting the obligation of any Borrower
to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that (a) no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or willful
misconduct, provided, however, that no action taken in accordance with the express
directions of the Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section, and (b) no Lender shall be liable for the payment of any
Indemnified Liabilities pursuant to this Section unless such Indemnified Liabilities were incurred
by the Administrative Agent in its capacity as such or by another Agent-Related Person acting for
the Administrative Agent in such capacity. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including all fees, expenses and disbursements of counsel) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive termination of the Aggregate Commitments, the payment of
all other Obligations and the resignation of the Administrative Agent.



     9.08. Administrative Agent in its Individual Capacity. Bank of America and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Borrowers and their respective Affiliates as though Bank of
America were not the Administrative Agent, the Fronting L/C Issuer or the Several L/C Agent
hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive information regarding any
Borrower or its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Borrower or such Affiliate) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With respect to its Loans
and L/C Credit Extensions, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though



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it were not the Administrative Agent, the Fronting L/C Issuer or the Several L/C Agent, and the
terms “Lender” and “Lenders” include Bank of America in its individual capacity.




     9.09. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent
upon 30 days’ notice to the Lenders and the Borrowers. If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall be consented to by
the Borrowers at all times other than during the existence of an Event of Default (which consent of
the Borrowers shall not be unreasonably withheld or delayed). If no successor administrative agent
is appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the Borrowers, a successor
administrative agent from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative Agent, the term
“Administrative Agent” shall mean such successor administrative agent and the retiring
Administrative Agent’s appointment, powers and duties as Administrative Agent (other than to
continue to hold any Cash Collateral or Risk Participation Cash Collateral until such time as a
successor administrative agent is appointed) shall be terminated without any other or further act
or deed on the part of such retiring Administrative Agent or any other Lender. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this
Article IX and Section 10.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor administrative agent as provided for above.



     9.10. Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Borrower, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.03(i) and (j), 2.08 and 10.05) allowed in such
judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



     and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due
for the reasonable



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compensation, expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections 2.08 and
10.05.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



     9.11. Other Agents; Joint Lead Arrangers and Book Managers. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a “syndication agent,”
“documentation agent” or “arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such Lenders, those
applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other
Persons so identified in deciding to enter into this Agreement or in taking or not taking action
hereunder.



ARTICLE X.

MISCELLANEOUS




     10.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by any Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrowers, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment, waiver
or consent shall:



     (a) waive any condition set forth in Section 5.01 without the written consent of each
Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or
Unreimbursed Amount, or (subject to clause (iv) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary to amend the definition of “Default
Rate” or to waive any obligation of the applicable Borrower to pay interest or Letter of Credit
Fees at the Default Rate;



     (e) change Section 2.12 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender; or



     (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;



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     and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Fronting L/C Issuer, the Several L/C Agent or each Limited Fronting
Lender, as applicable, in addition to the Lenders required above, affect the rights or duties of
the Fronting L/C Issuer, the Several L/C Agent or such Limited Fronting Lender, as applicable,
under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or
to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iii) Section
10.07(h) may not be amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment,
waiver or other modification; and (iv) the Fee Letters may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms
requires the consent of all Lenders may be effected with the consent of all Lenders other than
Defaulting Lenders), except that (A) the Commitment of any Defaulting Lender may not be increased
or extended without the consent of such Lender, and (B) any waiver, amendment or other modification
requiring the consent of all Lenders or each affected Lender that by its terms affects any
Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.



     10.02. Notices and Other Communications; Facsimile Copies.



     (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile or other
electronic transmission). All such written notices shall be mailed certified or registered mail,
faxed or delivered to the applicable address, facsimile number or (subject to Subsection (b) below)
electronic mail address, and all notices and other communications expressly permitted hereunder to
be given by telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrowers, the Administrative Agent, the Fronting L/C Issuer or the
Several L/C Agent, to the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 10.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the other parties; and




     (ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers, the Administrative Agent , the Fronting L/C Issuer and
the Several L/C Agent.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications to the extent provided in
Subsection (b) below, shall be effective as provided in such Subsection (b). Each Lender agrees to
notify the Administrative Agent from time to time to ensure that the Administrative Agent has on
record (i) an effective address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent to such Lender and (ii) accurate
wire instructions for such Lender.



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     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender, the Fronting L/C Issuer or the Several
L/C Agent pursuant to Article II if such Lender has notified the Administrative Agent that
it is incapable of receiving notices under such Article by electronic communication. The
Administrative Agent or any Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications.



     (c) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (d) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any
Agent-Related Person (collectively, the “Agent Parties”) have any liability to any
Borrower, any Lender, the Fronting L/C Issuer, the Several L/C Agent or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of Borrower
Materials through the Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to any
Borrower, any Lender, the Fronting L/C Issuer, the Several L/C Agent or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages). Each Public Lender agrees to cause at least one individual at or on behalf of such
Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the “Public Side Information” portion of the Platform and that
may contain material non-public information with respect to the Borrowers or their securities for
purposes of United States Federal or state securities laws.



     (e) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile or in pdf format. The effectiveness of any such documents
and signatures shall, subject to applicable Law, have the same force and effect as manually-signed
originals



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and shall be binding on all Borrowers, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or signature.




     (f) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices)
reasonably believed by them to be genuine and to have been given by or on behalf of the Borrowers
even if (i) such notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrowers shall jointly and
severally indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice reasonably believed by it to
be genuine and to have been given by or on behalf of the Borrowers. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.



     10.03. No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.



     10.04. Enforcement. Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents
against the Borrowers (and any Applicant that is not a Borrower) shall be vested exclusively in,
and all actions and proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the
benefit of all the Lenders, the Fronting L/C Issuer, the Several L/C Agent, and any Limited
Fronting Lender; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the Fronting L/C Issuer, the Several L/C Agent or any Limited Fronting Lender, as
applicable, from exercising the rights and remedies that inure to its benefit (solely in its
capacity as Fronting L/C Issuer, Several L/C Agent, or Limited Fronting Lender, as the case may be)
hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.09 (subject to the terms of Section 2.12), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to the Borrowers under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder and under
the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to
the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set
forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.12, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.



     10.05. Costs, Expenses and Indemnification.



     (a) Each Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and the Agent-Related Persons, including reasonable fees, expenses and
disbursements of one law firm, in connection with the syndication of the credit facilities provided
for herein, the preparation and administration of this Agreement or any amendments, modifications
or



62









 




waivers of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or protection of its rights
in connection with this Agreement, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or L/C
Obligations.




     (b) Each Borrower shall indemnify the Administrative Agent, each Lender, the Fronting L/C
Issuer, the Several L/C Agent and the directors, officers, employees, agents, advisors and
Affiliates of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities,
penalties and related expenses (including, without limitation, the reasonable fees, charges and
disbursements of one counsel for the Indemnitees, unless the Indemnitees have conflicting interests
that cannot reasonably be represented by one counsel, in which case such expenses shall include the
reasonable fees, charges and disbursements of no more than such number of counsels as are necessary
to represent such conflicting interests) incurred by any Indemnitee or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, or the performance by the parties hereto of their respective obligations hereunder or
thereunder, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Fronting L/C Issuer or Several L/C Agent 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 actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, and regardless of whether any Indemnitee is a party thereto
(collectively, the “Indemnified Liabilities”); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities, penalties or related expenses (x) are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the gross negligence, bad faith or
willful misconduct of such Indemnitee, (y) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from a breach in
bad faith by an Indemnitee in any material respect of such Indemnitee’s obligations
hereunder or under any other Loan Document, or (z) result from any action, suit, proceeding or
claim solely among Indemnitees brought by any Indemnitee against any other Indemnitee that does not
involve an act or omission (or alleged act or omission) by the Borrowers or any of the Borrowers’
affiliates.



     (c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the
Administrative Agent under paragraph (a) or (b) of this Section 10.05, each Lender
severally agrees to pay to the Administrative Agent such Lender’s Pro Rata Share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent,
in its capacity as such.



     (d) To the extent permitted by applicable law, the Borrowers shall not assert, and each
Borrower hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan, any Letter of Credit or the use of the proceeds
thereof.



     (e) No Indemnitee shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement.



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     (f) The agreements in this Section shall survive the resignation of the Administrative Agent,
the replacement of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.



     10.06. Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is made
to the Fronting L/C Issuer, the Several L/C Agent, any Limited Fronting Lender, the Administrative
Agent or any Lender, or the Fronting L/C Issuer, the Several L/C Agent, any Limited Fronting
Lender, the Administrative Agent or any Lender exercises its right of set-off, and such payment or
the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by the Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent, such Limited
Fronting Lender, or such Lender in its discretion) to be repaid to a trustee, rehabilitator,
conservator, custodian, liquidator, receiver or any other party, in connection with any proceeding
under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such set-off had not occurred, and (b) each
Lender severally agrees to pay to the Administrative Agent (for the account of the applicable
Person) upon demand its applicable share of any amount so recovered from or repaid by the
applicable party, plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in effect.



     10.07. Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrowers may not assign or otherwise transfer any of their respective rights or obligations
hereunder without the prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of Subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of Subsection (d) of this Section, (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Subsection (f) of this Section, or
(iv) to an SPC in accordance with the provisions of Subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in Subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans (including for purposes of this Subsection (b), participations in L/C Obligations,
whether as an issuer or a participant) at the time owing to it); provided that (i) except
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans and L/C Obligations at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans and L/C Obligations outstanding
thereunder) subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrowers otherwise consent (each such consent not to be unreasonably
withheld or delayed); provided that concurrent assignments to members of an Assignee Group
and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to
an



64









 




Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met; (ii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans, the risk participations in Letters of Credit and
the Commitment assigned; (iii) any assignment of a Commitment must be approved by the
Administrative Agent and the Fronting L/C Issuer or the Several L/C Agent, as applicable (which
approvals shall not be unreasonably withheld or delayed) unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); (iv) the assignment shall contain a representation by the Eligible Assignee to
the effect that none of the consideration used to make the purchase of the Commitment and Loans and
L/C Obligations under the applicable Assignment and Assumption constitutes “plan assets” as defined
under ERISA and that the rights and interests of the Eligible Assignee in and under the Loan
Documents will not be “plan assets” under ERISA; and (v) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, together with, unless
waived by the Administrative Agent in its sole discretion, a processing and recordation fee in the
amount of $3,500. Subject to acceptance and recording thereof by the Administrative Agent pursuant
to Subsection (c) of this Section 10.07, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption, have (in addition to
any such rights or obligations then otherwise held by it) the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and
10.05 with respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, each Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
Subsection (d) of this Section 10.07.




     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal and interest amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive in the absence of manifest
error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or other substantive
change to the Loan Documents is pending, any Lender may request and receive from the Administrative
Agent a copy of the Register.



     (d) Any Lender may at any time, without the consent of, or notice to, any Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person or a Borrower
or any of a Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion
of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations,
whether as an issuer or a participant) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal



65









 




solely and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to Subsection (e) of this
Section 10.07, the Borrowers agree that each Participant shall be entitled to the benefits
of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Subsection (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.09 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.12 as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as an agent of each of the Borrowers (solely for tax purposes),
maintain a register on which it enters the name and address of each Participant and the principal
amounts (and stated interest) of each Participant’s interest in the Loans or other obligations
under this Agreement (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register to any Person except to the
extent that such disclosure is necessary to establish that such Loan or other obligation under this
Agreement is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations
or such disclosure is otherwise required in connection with compliance with the Code. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement.




     (e) A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers’ prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01 as though
it were a Lender.



     (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) As used herein, the following terms have the following meanings:




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the Fronting L/C Issuer and the Several
L/C Agent, and (ii) unless an Event of Default has occurred and is continuing, the
Borrowers (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible Assignee” shall not
include (A) any Borrower, (B) any of the Borrowers’ Affiliates or Subsidiaries, (C)
any Person who does not have, or whose direct or indirect parent does not have, at
the effective time of an assignment pursuant to this Section 10.07, a long
term unsecured non-credit enhanced senior debt rating from S&P of at least A+ or
from Moody’s of at least A1 (unless such Person is otherwise acceptable to the
Administrative Agent and the Arrangers), or (D) a Person who is a Non-NAIC Approved
Bank at the effective time of the assignment pursuant to this Section 10.07



66









 







(unless such Person is otherwise acceptable to the Administrative Agent and Bank of
America).




     “Fund” means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.




     “Approved Fund” means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.




     “Assignee Group” means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.



     (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time
to time by the Granting Lender to the Administrative Agent and the Borrowers (an “SPC”) the
option to provide all or any part of any Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Loan or any L/C Obligation and (ii) if an SPC elects
not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof or, if it fails to do so,
to make such payment to the Administrative Agent as is required under Section 2.11(c)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC
of such option shall increase the costs or expenses or otherwise increase or change the obligations
of the Borrowers under this Agreement (including their obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement
for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including
the approval of any amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other senior debt of any SPC,
it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of
the United States or any State thereof. Notwithstanding anything to the contrary contained herein,
any SPC may (i) with notice to, but without prior consent of, the Borrowers and the Administrative
Agent and without paying any processing fee therefor, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.



     (i) Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to Subsection (b) above, Bank of America may, upon
30 days’ notice to the Borrowers and the Lenders, resign as the Fronting L/C Issuer and/or the
Several L/C Agent. In the event of any such resignation as Fronting L/C Issuer and/or the Several
L/C Agent, the Borrowers shall be entitled to appoint from among the Lenders a successor Fronting
L/C Issuer and/or the Several L/C Agent hereunder; provided, however, that no
failure by the Borrowers to appoint any such successor shall affect the resignation of Bank of
America as Fronting L/C Issuer and/or the Several L/C Agent. If Bank of America resigns as
Fronting L/C Issuer and/or the Several L/C Agent, it shall retain all the rights and obligations of
the Fronting L/C Issuer and/or the Several L/C Agent



67









 







hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Fronting L/C Issuer and/or the
Several L/C Agent and all L/C Obligations with respect thereto. Upon the appointment of a
successor Fronting L/C Issuer and/or the Several L/C Agent and the receipt of any
necessary approvals from any beneficiaries of any Letters of Credit and any insurance
regulatory authorities, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Fronting L/C Issuer and/or the Several L/C
Agent and (b) the successor Fronting L/C Issuer and/or the Several L/C Agent shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.



     10.08. Confidentiality. Each of the Administrative Agent, the Fronting L/C Issuer, the Several L/C
Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it or its Affiliates
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower and its obligations, (g)
with the consent of any Borrower, or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section by such Person or (y) becomes
available to the Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent or any Lender
on a nonconfidential basis from a source other than any Borrower. In the event that the
Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent or any Lender becomes legally
compelled to disclose any confidential Information pursuant to paragraph (c) of this Section
10.08, the Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent or such Lender
shall, to the extent permitted by law, give prompt written notice of that fact to the Borrowers
prior to the disclosure so that the Borrowers may seek an appropriate remedy to prevent or limit
such disclosure and the Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent or
such Lender shall cooperate reasonably (at the expense of the Borrowers) with the Borrowers in
seeking such remedy. For purposes of this Section, “Information” means all information
received from any Borrower or any of its Subsidiaries relating to any Borrower or any Subsidiary or
any of their respective businesses, other than any such information that is available to the
Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent or any Lender on a
nonconfidential basis prior to disclosure by any Borrower or any Subsidiary, provided that,
in the case of information received from any Borrower or any Subsidiary after the 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. Each of the Administrative Agent, the Fronting L/C Issuer, the
Several L/C Agent and the Lenders acknowledges that (a) the Information may include material
non-public information concerning the Borrowers, (b) it has developed compliance procedures
regarding the use of material non-public information, and (c) it will handle such material
non-public information in accordance with applicable Law, including United States Federal and state
securities Laws.



68









 





     10.09. Set-off. In addition to any rights and remedies of the Lenders provided by law, upon the
occurrence and during the continuance of any Event of Default, each Lender is authorized at any
time and from time to time, without prior notice to any Borrower, any such notice being waived by
the Borrowers to the fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other indebtedness at any
time owing by, such Lender to or for the credit or the account of the respective Borrowers against
any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or
hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although such Obligations may
be contingent or unmatured or denominated in a currency different from that of the applicable
deposit or indebtedness. Each Lender agrees promptly to notify the Borrowers and the
Administrative Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of such set-off
and application.



     10.10. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or the L/C Obligations or,
if it exceeds such unpaid principal, refunded to the applicable Borrower. In determining whether
the interest contracted for, charged or received by the Administrative Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.



     10.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto and such
counterparts shall have been deemed to have been delivered (in accordance with instructions
communicated by the Administrative Agent to the other parties hereto) for purposes of binding the
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



     10.12. Integration. This Agreement, together with the other Loan Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent, the Fronting L/C Issuer, the Several L/C Agent, any Limited
Fronting Lender or the Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.



     10.13. Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent, the Fronting L/C
Issuer, the Several L/C Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent, the Fronting L/C Issuer, the



69









 







Several L/C Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan, L/C Obligation or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.



     10.14. Severability. If any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



     10.15. Mitigation of Obligations; Replacement of Lenders.



     (a) If any Lender requests compensation under Section 3.04, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, then such Lender shall, upon the request of such
Borrower, use reasonable efforts to designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 3.04 or 3.01, as the
case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



     (b) If a Lender is a Defaulting Lender, or under any circumstances otherwise set forth herein
providing that the Borrowers shall have the right to replace a Lender as a party to this Agreement,
the Borrowers may, upon notice to such Lender and the Administrative Agent, replace such Lender by
causing such Lender to assign its Commitment (with the assignment fee to be paid by the Borrowers
in such instance) pursuant to Section 10.07(b) to one or more other Lenders or Eligible
Assignees procured by the Borrowers; provided, however, that if the Borrowers elect
to exercise such right with respect to any Lender pursuant to Section 3.06(b), it shall be
obligated to replace all Lenders that have made requests for compensation on a similar basis and in
a similar amount pursuant to Section 3.01 or 3.04. Upon the making of any such
assignment, the Borrowers shall pay in full any amounts payable pursuant to Section 3.05.



     10.16. Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE EXTENT LEGALLY PERMISSIBLE,
EACH BORROWER, THE



70









 







ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. TO THE EXTENT LEGALLY PERMISSIBLE, EACH BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY
BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.



     10.17. Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



     10.18. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), the Borrowers acknowledge and agree that: (i) (A) the
arranging and other services regarding this Agreement provided by the Administrative Agent, the
Lenders and the Arrangers are arm’s-length commercial transactions between the Borrowers, on the
one hand, and the Administrative Agent, the Lenders and the Arrangers, on the other hand, (B) each
of the Borrowers has consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) each of the Borrowers is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the
other Loan Documents; (ii) (A) each of the Administrative Agent, the Lenders and the Arrangers is
and has been acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary
for any Borrower or any other Person and (B) none of the Administrative Agent, any Lender nor any
Arranger has any obligation to any Borrower with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent, the Lenders and the Arrangers and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of the Borrowers and
their respective Affiliates, and none of the Administrative Agent, any Lender nor any Arranger has
any obligation to disclose any of such interests to the Borrowers or any of their respective
Affiliates. To the fullest extent permitted by law, each of the Borrowers hereby waives and
releases any claims that it may have against the Administrative Agent, the Lenders and the
Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transaction contemplated hereby.



     10.19. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the Borrowers and any other
Applicants, which information includes the name and address of the Borrowers and any other
Applicants and other



71









 







information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers and any other Applicants in accordance with the Act.



     10.20. Waiver of Notice of Termination of Existing Credit Agreements. By its execution hereof, the
Administrative Agent and each of the Lenders that is a party to either of the Existing Credit
Agreements hereby waives the five Business Days’ notice required under each of the Existing Credit
Agreements in connection with the termination of the commitments under each of the Existing Credit
Agreements on the Closing Date.




72











 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	METLIFE, INC.

 	 
	 	By:  	/s/ Steven J. Goulart
 	 
	 	 	Name:  	Steven J. Goulart 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 



	 	 	 	 	 
	 	METLIFE FUNDING, INC.

 	 
	 	By:  	/s/ Steven J. Goulart
 	 
	 	 	Name:  	Steven J. Goulart 	 
	 	 	Title:  	Chairman, President and Treasurer 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Administrative Agent,

Fronting L/C Issuer, Several L/C Agent and a Lender

 	 
	 	By:  	/s/ Chris Choi
 	 
	 	 	Name:  	Chris Choi 	 
	 	 	Title:  	Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



2









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Michael E. Murray
 	 
	 	 	Name:  	Michael E. Murray 	 
	 	 	Title:  	Executive Director
JPMorgan Chase Bank, N.A. 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Jennifer Guinan
 	 
	 	 	Name:  	Jennifer Guinan 	 
	 	 	Title:  	Assistant Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	CREDIT SUISSE AG, NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Jay Chall
 	 
	 	 	Name:  	Jay Chall 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Karl Studer
 	 
	 	 	Name:  	Karl Studer 	 
	 	 	Title:  	Director 	 






Signature Page to

364-Day Credit Agreement



 









 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Robert Chesley
 	 
	 	 	Name:  	Robert Chesley 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                    /s/ Kathleen Bowers
 	 
	 	 	Name:  	Kathleen Bowers 	 
	 	 	Title:  	Director 	 






Signature Page to

364-Day Credit Agreement



 









 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA, as a Lender

 	 
	 	By:  	/s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Paul Silvester
 	 
	 	 	Name:  	Paul Silvester 	 
	 	 	Title:  	Managing Director
	 
	 	Address:	 	452 Fifth Avenue

New York, NY 10018
	 
	 	Telephone:	 	(212) 525-2873
	 	Fax:	 	(212) 525-2479
	 
	 	Email:	 	paul.silvester@us.hsbc.com 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	BARCLAYS BANK PLC, as a Lender

 	 
	 	By:  	/s/ Alicia Borys
 	 
	 	 	Name:  	Alicia Borys 	 
	 	 	Title:  	Assistant Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	CITIBANK, N.A., as a Lender

 	 
	 	By:  	/s/ Peter Bickford
 	 
	 	 	Name:  	Peter Bickford 	 
	 	 	Title:  	Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	UBS AG, STAMFORD BRANCH, as a Lender

 	 
	 	By:  	/s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                   /s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK

BRANCH, as a Lender

 	 
	 	By:  	/s/ Oscar D. Cortez
 	 
	 	 	Name:  	Oscar D. Cortez 	 
	 	 	Title:  	Authorized Signatory 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	BNP PARIBAS, as a Lender

 	 
	 	By:  	/s/ Phil Truesdale
 	 
	 	 	Name:  	Phil Truesdale 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                 /s/ Laurent Vanderzyppe
 	 
	 	 	Name:  	Laurent Vanderzyppe 	 
	 	 	Title:  	Managing Director 	 






Signature Page to

364-Day Credit Agreement



 









 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., as a Lender

 	 
	 	By:  	/s/ David Lim
 	 
	 	 	Name:  	David Lim 	 
	 	 	Title:  	Authorized Signatory 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Ryan Vetsch
 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Authorized Signatory 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC, as a Lender

 	 
	 	By:  	/s/ Joseph W. Lux
 	 
	 	 	Name:  	Joseph W. Lux 	 
	 	 	Title:  	Managing Director 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	BANCO SANTANDER, S.A. NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Jesus Lopez
 	 
	 	 	Name:  	Jesus Lopez 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                  /s/ Harry Moreno
 	 
	 	 	Name:  	Harry Moreno 	 
	 	 	Title:  	Senior Vice President 	 






Signature Page to

364-Day Credit Agreement



 









 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	ING BANK N.V., LONDON BRANCH, as a Lender

 	 
	 	By:  	/s/ N J Marchant
 	 
	 	 	Name:  	N J Marchant 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ M E R Sharman
 	 
	 	 	Name:  	M E R Sharman 	 
	 	 	Title:  	Managing Director 	 






Signature Page to

364-Day Credit Agreement



 









 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Gustavus A. Bahr
 	 
	 	 	Name:  	Gustavus A. Bahr 	 
	 	 	Title:  	Senior Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as a Lender

 	 
	 	By:  	/s/ David Mahmood
 	 
	 	 	Name:  	David Mahmood 	 
	 	 	Title:  	Managing Director 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	SOCIETE GENERALE, as a Lender

 	 
	 	By:  	/s/ William Aishton
 	 
	 	 	Name:  	William Aishton 	 
	 	 	Title:  	Director 	 
	 






Signature Page to

364-Day Credit Agreement



 








 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as a Lender

 	 
	 	By:  	/s/ Paulette Truman
 	 
	 	 	Paulette Truman 	 
	 	 	Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Evan Glass
 	 
	 	 	Name:  	Evan Glass 	 
	 	 	Title:  	Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	UNICREDIT BANK AG, as a Lender

 	 
	 	By:  	/s/ Jorge Wilmer
 	 
	 	 	Name:  	Jorge Wilmer 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ M. A. Imperiale
 	 
	 	 	Name:  	M. A. Imperiale 	 
	 	 	Title:  	Director 	 






Signature Page to

364-Day Credit Agreement




 








 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	/s/ Tim Stephens
 	 
	 	 	Name:  	Tim Stephens 	 
	 	 	Title:  	Director 	 
	 






Signature Page to

364-Day Credit Agreement



 








 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	LLOYDS TSB BANK PLC, as a Lender

 	 
	 	By:  	/s/ Rich Herder
 	 
	 	 	Name:  	Rich Herder 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Candi Obrentz
 	 
	 	 	Name:  	Candi Obrentz 	 
	 	 	Title:  	Vice President 	 






Signature Page to

364-Day Credit Agreement



 








 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY, as a Lender

 	 
	 	By:  	/s/ Michael Kingsley
 	 
	 	 	Name:  	Michael Kingsley 	 
	 	 	Title:  	Senior Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	STATE STREET BANK AND TRUST COMPANY, as a Lender

 	 
	 	By:  	/s/ Deirdre M. Holland
 	 
	 	 	Deirdre M. Holland 	 
	 	 	Vice President 	 
	 






Signature Page to

364-Day Credit Agreement



 








 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, as a

Lender

 	 
	 	By:  	/s/ John W. Wade
 	 
	 	 	Name:  	John W. Wade 	 
	 	 	Title:  	Deputy General Manager
Head of Operations and Infrastructure 	 
	 






Signature Page to

364-Day Credit Agreement



 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	CREDIT AGRICOLE CORPORATE & INVESTMENT BANK, as a

Lender

 	 
	 	By:  	/s/ Charles Kornberger
 	 
	 	 	Name:  	Charles Kornberger 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Frank Tatulli
 	 
	 	 	Name:  	Frank Tatulli 	 
	 	 	Title:  	Managing Director 	 






Signature Page to

364-Day Credit Agreement



 








 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	Standard Chartered Bank, as a Lender

 	 
	 	By:  	/s/ James Conti
 	 
	 	 	Name:  	James Conti 	 
	 	 	Title:  	Director A2226 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Robert K. Reddington
 	 
	 	 	Name:  	Robert K. Reddington 	 
	 	 	Title:  	Credit Documentation Manager

Credit Documentation Unit,

WB Legal-Americas 	 






Signature Page to

364-Day Credit Agreement



 








 







	 	 	 	 	 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	RBC BANK (USA), as a Lender

 	 
	 	By:  	/s/ Richard Marshall
 	 
	 	 	Name:  	Richard Marshall 	 
	 	 	Title:  	Market Executive — National Division 	 
	 






Signature Page to

364-Day Credit Agreement