Exhibit 10.39


 




 





364-DAY CREDIT AGREEMENT


 


dated as of


 


April 30, 2004


 


Among


 


GENWORTH FINANCIAL, INC.


 


as Borrower,


 


the Lenders Party Hereto


 


and


 


JPMorgan Chase Bank and Bank of America, N.A.,


 


as Co-Administrative Agents


 


$1,000,000,000 REVOLVING CREDIT FACILITY




 





 


Banc of America Securities LLC and J.P. Morgan Securities Inc.,


 


as Joint Bookrunners and Joint Lead Arrangers


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I Definitions

  	
   

  
	
   

  	
  SECTION 1.01.   Defined Terms

  	
   

  
	
   

  	
  SECTION 1.02.   Classification
  of Loans and Borrowings.

  	
   

  
	
   

  	
  SECTION 1.03.   Terms Generally

  	
   

  
	
   

  	
  SECTION 1.04.  
  Accounting Terms; GAAP.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II
  The Credits

  	
   

  
	
   

  	
  SECTION 2.01.   Commitments.

  	
   

  
	
   

  	
  SECTION 2.02.   Loans and
  Borrowings.

  	
   

  
	
   

  	
  SECTION 2.03.   Requests for
  Borrowings.

  	
   

  
	
   

  	
  SECTION 2.04.   Funding of
  Borrowings.

  	
   

  
	
   

  	
  SECTION 2.05.   Interest
  Elections.

  	
   

  
	
   

  	
  SECTION 2.06.   Termination and
  Reduction of Commitments.

  	
   

  
	
   

  	
  SECTION 2.07.  
  Repayment of Loans; Evidence of Debt; Term-Out Option.

  	
   

  
	
   

  	
  SECTION 2.08.   Prepayment of
  Loans.

  	
   

  
	
   

  	
  SECTION 2.09.   Fees.

  	
   

  
	
   

  	
  SECTION 2.10.   Interest.

  	
   

  
	
   

  	
  SECTION 2.11.  
  Alternate Rate of Interest.

  	
   

  
	
   

  	
  SECTION 2.12.   Increased Costs.

  	
   

  
	
   

  	
  SECTION 2.13.   Taxes.

  	
   

  
	
   

  	
  SECTION 2.14.   Payments
  Generally.

  	
   

  
	
   

  	
  SECTION 2.15.   Mitigation
  Obligations; Replacement of Lenders.

  	
   

  
	
   

  	
  SECTION 2.16.   Break Funding
  Payments.

  	
   

  
	
   

  	
  SECTION 2.17.   Illegality.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  Representations of the Borrower

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  Conditions

  	
   

  
	
   

  	
  SECTION 4.01.   Effective Date.

  	
   

  
	
   

  	
  SECTION 4.02.   Each Credit
  Event.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V Affirmative Covenants

  	
   

  
	
   

  	
  SECTION 5.01.   Financial
  Statements and Other Information.

  	
   

  
	
   

  	
  SECTION 5.02.   Use of Proceeds.

  	
   

  
	
   

  	
  SECTION 5.03.   Books and
  Records; Inspection Rights.

  	
   

  
	
   

  	
  SECTION 5.04.  
  Notices of Defaults.

  	
   

  
	
   

  	
  SECTION 5.05.   Existence;
  Conduct of Business.

  	
   

  
	
   

  	
  SECTION 5.06.   Compliance with
  Laws.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  Negative Covenants

  	
   

  
	
   

  	
  SECTION 6.01.   Financial
  Condition Covenant.

  	
   

  
	
   

  	
  SECTION 6.02.   Liens.

  	
   

  
	
   

  	
  SECTION 6.03.   Fundamental
  Changes.

  	
   

  
	
   

  	
  SECTION 6.04.   Transactions
  with Affiliates.

  	
   

  



 


ii

















 


	
  ARTICLE VII
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII The Agents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  Miscellaneous

  	
   

  
	
   

  	
  SECTION 9.01.   Notices.

  	
   

  
	
   

  	
  SECTION 9.02.   Waivers;
  Amendments.

  	
   

  
	
   

  	
  SECTION 9.03.   Expenses;
  Indemnity.

  	
   

  
	
   

  	
  SECTION 9.04.   Successors and
  Assigns.

  	
   

  
	
   

  	
  SECTION 9.05.   Counterparts;
  Integration; Effectiveness.

  	
   

  
	
   

  	
  SECTION 9.06.   Governing Law;
  Jurisdiction.

  	
   

  
	
   

  	
  SECTION 9.07.   Right of Setoff.

  	
   

  
	
   

  	
  SECTION 9.08.   Headings

  	
   

  
	
   

  	
  SECTION 9.09.   Confidentiality.

  	
   

  
	
   

  	
  SECTION 9.10.   Severability.

  	
   

  
	
   

  	
  SECTION 9.11.   WAIVER OF JURY
  TRIAL.

  	
   

  
	
   

  	
  SECTION 9.12.   USA Patriot Act.

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  2.01 – Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A –
  Form of Assignment and Acceptance

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit B –
  Form of Opinion of Borrower’s In-House Counsel

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit C –
  Form of Revolving Note

  	
   

  



 


iii

















 


CREDIT AGREEMENT (this “Agreement”),
dated as of April 30, 2004, among GENWORTH FINANCIAL, INC. (“Genworth”),
a Delaware corporation, as borrower (the “Borrower”), the several banks
and other financial institutions from time to time parties hereto (the “Lenders”),
JPMORGAN CHASE BANK (“JPMorgan Chase Bank”) and BANK OF AMERICA, N.A. (“Bank
of America”), as co-administrative agents (in such capacity, the “Co-Administrative
Agents”) and JPMORGAN CHASE BANK, as paying agent (in such capacity, the “Paying
Agent”).


 


The parties hereto
agree as follows:


 


ARTICLE
I




DEFINITIONS


 


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


 


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


 


“Affiliate” means, with respect to a
specified 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.


 


“Agents” means the Co-Administrative
Agents and the Paying Agent.


 


“Applicable Facility Fee Percentage”
means, for any day with respect to any Commitment and subject to the provisions
of the definition of “Applicable Margin” following the table therein, the rate
per annum set forth below under the caption “Facility Fee Rate Spread”
corresponding to the Level in effect from time to time, as set forth in the
following table:


 


	
  Level

  	
   

  	
  Index Debt
  Ratings

  (Moody’s or S&P)

  	
   

  	
  Facility
  Fee

  Rate Spread

  	
   

  
	
  I

  	
   

  	
  >A+ or A1

  	
   

  	
  0.06

  	
  %

  
	
  II

  	
   

  	
  A or A2

  	
   

  	
  0.07

  	
  %

  
	
  III

  	
   

  	
  A-or A3

  	
   

  	
  0.08

  	
  %

  
	
  IV

  	
   

  	
  BBB+ or Baa1

  	
   

  	
  0.10

  	
  %

  
	
  V

  	
   

  	
  <BBB or Baa2

  	
   

  	
  0.125

  	
  %

  



 


“Applicable Margin” means, for any
day, with respect to any Eurodollar Loan, the applicable rate per annum set
forth in the table below, under the caption 
“Applicable Margin”, corresponding to the Level in effect from time to
time, as set forth in the following table:


 


	
  Level

  	
   

  	
  Index Debt
  Ratings

  (Moody’s or S&P)

  	
   

  	
  Applicable
  Margin

  	
   

  
	
  I

  	
   

  	
  >A+ or A1

  	
   

  	
  0.19

  	
  %

  
	
  II

  	
   

  	
  A or A2

  	
   

  	
  0.23

  	
  %

  
	
  III

  	
   

  	
  A-or A3

  	
   

  	
  0.295

  	
  %

  
	
  IV

  	
   

  	
  BBB+ or Baa1

  	
   

  	
  0.40

  	
  %

  
	
  V

  	
   

  	
  <BBB or Baa2

  	
   

  	
  0.625

  	
  %

  



 

















 


For purposes of the foregoing
and the definitions of “Applicable Facility Fee Percentage” and “Applicable
Utilization Fee Percentage”, (i) if the ratings established or deemed to have
been established by Moody’s Investors Services, Inc. (“Moody’s”) or
Standard & Poor’s Rating Group (“S&P”) for such debt shall fall
within different Levels, the Applicable Margin, Applicable Fee Percentage or
Applicable Utilization Fee Percentage, as the case may be, shall be based on
the higher of the two ratings (i.e., the higher Level) unless one of the two
ratings is two or more Levels lower than the other, in which case the
Applicable Margin, Applicable Fee Percentage or Applicable Utilization Fee Percentage,
as the case may be, shall be determined by reference to the Level next below
the higher of the two Levels (it being understood that Level I is the highest
Level and Level V is the lowest Level); and (ii) if the ratings established or
deemed to have been established by Moody’s and S&P for such debt shall be
changed (other than as a result of a change in the rating system of Moody’s or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency.  Each change in the Applicable Margin, Applicable Fee Percentage or
Applicable Utilization Fee Percentage, as the case may be, shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change.  If the rating system of Moody’s or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower and the Paying Agent shall
negotiate in good faith to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Margin, Applicable Fee
Percentage or Applicable Utilization Fee Percentage, as the case may be, shall
be determined by reference to the rating most recently in effect prior to such
change or cessation.


 


“Applicable Percentage” means, with
respect to any Lender, the percentage of the total Commitments represented by
such Lender’s Commitment.  If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.


 


“Applicable Utilization Fee Percentage”
means, for any day with respect to any Loan and subject to the provisions of
the definition of “Applicable Margin” following the table therein, the rate per
annum set forth below under the caption “Utilization Fee Rate Spread”
corresponding to the Level in effect from time to time, as set forth in the
following table:


 


	
  Level

  	
   

  	
  Index Debt
  Ratings

  (Moody’s or S&P)

  	
   

  	
  Utilization
  Fee

  Rate Spread

  	
   

  
	
  I

  	
   

  	
  >A+ or A1

  	
   

  	
  0.05

  	
  %

  
	
  II

  	
   

  	
  A or A2

  	
   

  	
  0.10

  	
  %

  
	
  III

  	
   

  	
  A-or A3

  	
   

  	
  0.125

  	
  %

  
	
  IV

  	
   

  	
  BBB+ or Baa1

  	
   

  	
  0.125

  	
  %

  
	
  V

  	
   

  	
  <BBB or Baa2

  	
   

  	
  0.125

  	
  %

  



 


“Asset Securitization” means a public
or private transfer of installment receivables, credit card receivables, lease
receivables, mortgage loan receivables, policyholder loan receivables,
premiums, debt obligations or any other type of secured or unsecured financial
assets or rights to future payments of any kind, or interests therein, which
transfer is recorded as a sale according to GAAP as of the date of such
transfer.


 


“Assignment and Acceptance” means an
assignment and acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 9.04), and accepted
by the Paying Agent, in the form of Exhibit A or any other form approved
by the Paying Agent.


 


2

















 


“Availability Period” means, with
respect to the making of Loans, the period from and including the Effective
Date to but excluding the earlier of the Availability Termination Date and the
date of termination of the relevant Commitments.


 


“Availability Termination Date” means
the day that is 364 days after the Effective Date.


 


“Board” means the Board of Governors
of the Federal Reserve System of the United States of America (or any
successor).


 


“Borrower” has the meaning given to it
in the preamble hereto.


 


“Borrowing” means Loans of the same
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.


 


“Borrowing Date” means any Business
Day specified by the Borrower as a date on which the Borrower requests the
relevant Lenders to make Loans hereunder.


 


“Borrowing Request” means a request by
the Borrower for a Borrowing in accordance with Section 2.03.


 


“Business Day” means any day that is
not a Saturday, Sunday or other day on which commercial banks in New York City
are authorized or required by law to remain closed; provided that the
term “Business Day” shall also exclude (when used in connection with a
Eurodollar Loan), any day on which banks are not open for dealings in Dollar
deposits in the London and New York interbank markets.


 


“Change in Control” means (a) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) (other than General Electric Company and its subsidiaries)
of shares representing more than 50% of the issued and outstanding shares of
common stock of the Borrower; or (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of the Borrower or by
General Electric Company and its subsidiaries nor (ii) appointed by directors
so nominated.


 


“Co-Administrative Agents” has the
meaning given to it in the preamble hereto.


 


“Code” means the Internal Revenue Code
of 1986, as amended from time to time.


 


“Commitment” means, with respect to
each Lender, the commitment of such Lender to make Loans hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06 and
(b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. 
The initial amount of each Lender’s Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Commitment, as applicable.


 


“Conduit Lender” means any special
purpose corporation organized and administered by any Lender for the purpose of
making Loans otherwise required to be made by such Lender and designated by
such Lender in a written instrument; provided, that the designation by
any Lender of a Conduit Lender shall not relieve the designating Lender of any
of its obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and


 


3

















 


waivers required or requested
under this Agreement with respect to its Conduit Lender, and provided, further,
that no Conduit Lender shall (a) be entitled to receive any greater amount
pursuant to Section 2.12, 2.13, 2.16 or 9.03 than the designating Lender would
have been entitled to receive in respect of the extensions of credit made by
such Conduit Lender or (b) be deemed to have any Commitment.


 


“Consolidated Net Income” means, for
any period, the consolidated net income (or loss) (such loss being the “Consolidated
Net Loss”) of the Borrower and its consolidated Subsidiaries for such
period, determined in accordance with GAAP.


 


“Consolidated Net Worth” means, at any
date, all amounts that would, in conformity with GAAP, be included on a
consolidated balance sheet of the Borrower and its Subsidiaries under
stockholder’s interest at such date, excluding accumulated non-owner changes in
stockholder’s interest.


 


“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.


 


“Credit Exposure” means, with respect
to any Lender at any time, the outstanding principal amount of such Lender’s
Loans at such time.


 


“Default” means any event or condition
which upon notice, lapse of time or both would, unless cured or waived, become
an Event of Default.


 


“Dollars” or “$” refers to
lawful money of the United States of America.


 


“Effective Date” means the date on
which the conditions specified in Section 4.01 are satisfied (or waived in
accordance with Section 9.02).


 


“Eurodollar” means, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Eurodollar Rate.


 


“Eurodollar Rate” means, with respect
to any Eurodollar Borrowing for any Interest Period, the rate (rounded upwards,
if necessary, to the next 1/1000 of 1%) appearing on page 3750 of the Telerate
Service (or on any successor or substitute page of the Telerate Service, or any
successor to or substitute for the Telerate Service, providing rate quotations
comparable to those currently provided on such page of the Telerate Service, as
determined by the Paying Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, as the rate for Dollar deposits with
a maturity comparable to such Interest Period.


 


“Event of Default” has the meaning
assigned to such term in Article VII.


 


“Excluded Taxes” means, with respect
to the Agents, any Lender, or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction 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, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above, and (c) in the
case of any Lender, any withholding tax that is imposed on amounts payable to
such Lender at the time such Lender becomes a party to this Agreement or is
attributable to


 


4

















 


such Lender’s failure or
inability to comply with Section 2.13(e), except to the extent that such
Lender’s assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.13(a).


 


“Facility Fee” has the meaning given
to it in Section 2.09(a) hereof.


 


“Federal Funds Effective Rate” means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next 1/100 of
1%) of the quotations for such day for such transactions received by the Paying
Agent from three Federal funds brokers of recognized standing selected by it.


 


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


 


“Genworth” has the meaning given to it
in the preamble hereto.


 


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


 


“Indebtedness” of any Person means,
without duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments and (c) all guarantees by such Person of
Indebtedness of others (it being understood and agreed, for the avoidance of
doubt, that (i) annuities, guaranteed investment contracts, funding agreements
and similar instruments and agreements and (ii) insurance products created or
entered into in the normal course of business shall not constitute
“Indebtedness”).


 


“Indemnified Taxes” means Taxes (other
than Excluded Taxes) that are required by applicable law to be withheld or
deducted from a payment by, or on account of an obligation of, the Borrower
hereunder.


 


“Indemnitee” has the meaning given to
it in Section 9.03(b).


 


“Index Debt” means senior, unsecured,
long-term indebtedness for borrowed money of the Borrower that is not
guaranteed by any other Person or subject to any other credit enhancement.


 


“Interest Election Request” means a
request by the Borrower to convert or continue a Borrowing in accordance with
Section 2.05.


 


“Interest Payment Date” means
(a) with respect to any Prime Loan, the last day of each March, June,
September and December and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day
of such Interest Period.


 


5

















 


“Interest Period” means, with respect
to any Eurodollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months (or, to the extent available, nine or
twelve months) thereafter, as the Borrower may elect; provided, that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period pertaining to a Eurodollar Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period.  For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.


 


“Lead Arrangers” means Banc of America
Securities LLC and J.P. Morgan Securities Inc.


 


“Lenders” means the Persons listed on
Schedule 2.01 and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance; provided,
that unless the context otherwise requires, each reference herein to the
Lenders shall be deemed to include any Conduit Lender.


 


“Lien” means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset.


 


“Loan” has the meaning assigned to it
in Section 2.01.


 


“Material Adverse Effect” means a
material adverse effect on (a) the business, property, operations or financial
condition of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or the rights or remedies of the
Agents or the Lenders hereunder.


 


“Material Indebtedness” means any
Indebtedness of the Borrower or any Material Subsidiary in a principal amount
of $100,000,000 or more outstanding under any single agreement or instrument
(other than Indebtedness under this Agreement).


 


“Material Operating Segment” means the
following three operating segments of the Borrower and its Subsidiaries:  (i) Protection, (ii) Retirement Income and
Investments and (iii) Mortgage Insurance; provided, however, that
if the pro forma segment net income of any of the preceding operating segments
shall, for any fiscal year of the Borrower, represent less than 10% of the
Consolidated Net Income of the Borrower and its Subsidiaries for such fiscal
year, such operating segment shall no longer constitute a “Material Operating
Segment” hereunder.


 


“Material Subsidiary” means, at any
time, any Subsidiary of the Borrower that (i) has assets at such time
comprising 10% or more of the consolidated assets of the Borrower and its
Subsidiaries, (ii) had net income in the then most recently ended fiscal year
of the Borrower comprising 10% or more of the consolidated revenue of the
Borrower and its Subsidiaries for such fiscal year or (iii) for purposes of
clauses (f), (g), (h) and (i) of Article VII only, has Indebtedness in a
principal amount of $100,000,000 or more outstanding under any single agreement
or instrument.


 


“Maturity Date” means the Availability
Termination Date or, if the Borrower shall so elect by notice to the Paying
Agent pursuant to Section 2.07(f), the first anniversary of the Availability
Termination Date.


 


6

















 


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


 


“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.


 


“Paying Agent” has the meaning given
to it in the preamble hereto.


 


“PDF”, when used in reference to
notices via email attachment, means portable document format or a similar
electronic file format.


 


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


 


“Prime”, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the Prime
Rate.


 


“Prime Rate” means the rate of
interest per annum publicly announced from time to time by JPMorgan Chase Bank
as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.


 


“Register” has the meaning set forth
in Section 9.04.


 


“Registration Statement” means the
Borrower’s Registration Statement on Form S-1 (Registration Number 333-112009)
filed with the Securities and Exchange Commission on January 20, 2004, as
amended through the date hereof.


 


“Regulation U” means Regulation U of
the Board as in effect from time to time.


 


“Related Parties” means, with respect
to any specified Person, such Person’s Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such Person’s
Affiliates.


 


“Required Lenders” means, at any time,
Lenders having Credit Exposures and unused Commitments representing more than
50% of the sum of the total Credit Exposures and unused Commitments at such
time.


 


“S&P” means Standard & Poor’s Ratings
Services or any successor.


 


“Sale and Leaseback Transaction” means
any arrangement whereby the Borrower or a Material Subsidiary shall sell or
transfer any property, real or personal, used or useful in its business,
whether now owned or hereinafter acquired, and thereafter rent or lease from
the buyer or transferee property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred.


 


“SAP” means the accounting procedures
and practices prescribed or permitted by the applicable insurance regulatory
authority or the National Association of Insurance Commissioners and any
successor thereto.


 


7

















 


“Statutory Statement” means a
statement of the condition and affairs of a Material Subsidiary that is an
insurance company, prepared in accordance with SAP, and filed with the
applicable insurance regulatory authority.


 


“subsidiary” means, with respect to
any Person, any corporation or other entity of which the securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other person performing similar functions are at the time
directly or indirectly owned by such Person.


 


“Subsidiary” means any subsidiary of
the Borrower.


 


“Taxes” means any and all present or
future taxes, levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.


 


“Transactions” means the execution,
delivery and performance by the Borrower of this Agreement, the borrowing of
Loans and the use of the proceeds thereof.


 


“Type”, when used in reference to any
Loan or Borrowing, refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by reference to the Eurodollar
Rate or the Prime Rate.


 


“Utilization Fee” has the meaning
given to it in Section 2.09(c) hereof.


 


SECTION 1.02.  Classification
of Loans and Borrowings.For purposes of this Agreement, Loans may be
classified and referred to by Type  (e.g.,
“Eurodollar Loans”).  Borrowings also
may be classified and referred to by Type (e.g., a “Eurodollar
Borrowing”).


 


SECTION 1.03.  Terms
Generally.The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed
to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and
effect as the word “shall”.  Unless the
context requires otherwise (a) any reference herein to any Person shall be
construed to include such Person’s successors and permitted assigns, (b) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof and (c) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement.


 


SECTION 1.04.  Accounting Terms; GAAP.    Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Co-Administrative Agents that the Borrower requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Co-Administrative Agents notify the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.


 


8

















 


ARTICLE
II




THE CREDITS


 


SECTION 2.01.  Commitments.    Subject to the terms and conditions set
forth herein, each Lender agrees to make loans (each, a “Loan”) in
Dollars to the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in such Lender’s Credit
Exposure exceeding such Lender’s Commitment. 
Within the foregoing limit and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Loans, except that
no borrowing or reborrowing may occur after the Availability Period.  The Loans shall in each case be Prime Loans
or Eurodollar Loans, as the Borrower shall request.


 


SECTION 2.02.  Loans
and Borrowings.(a)      Each Loan
shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their respective Commitments.  Subject to Section 2.11, each Borrowing
shall be comprised entirely of Prime Loans or Eurodollar Loans as the Borrower
may request in accordance herewith.


 


(b)           The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that, other than any Commitment made by
a Lender through a Conduit Lender as described in the definition thereof, which
Commitment shall be the joint obligation of such Conduit Lender and its
designating Lender, the Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender’s failure to make Loans as required.


 


(c)           Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.


 


(d)           At the commencement of each Interest
Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $5,000,000 and not less than
$25,000,000.  At the time that each
Prime Borrowing is made, such Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $10,000,000; provided
that a Prime Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments.  Borrowings of more than one Type may be outstanding at the same
time; provided that there shall not at any time be more than a total of
twelve Eurodollar Borrowings outstanding.


 


(e)           Notwithstanding any other provision
of this Agreement, the Borrower shall not be entitled to request, or to elect
to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.


 


SECTION 2.03.  Requests
for Borrowings.    To request a
Borrowing, the Borrower shall notify the Paying Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of a Prime Borrowing, not later than 10:00 a.m.,
New York City time, on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery, telecopy or
email with PDF attachment to the Paying Agent of a written Borrowing Request in
a form approved by the Paying Agent and signed by the Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information:


 


(i)            the aggregate
amount of the requested Borrowing;


 


9

















 


(ii)           the date of such
Borrowing, which shall be a Business Day;


 


(iii)          whether such
Borrowing is to be a Prime Borrowing or a Eurodollar Borrowing;


 


(iv)          in the case of a
Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest
Period”; and


 


(v)           the location and
number of the Borrower’s account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.04.


 


If no election
as to the Type of Borrowing is specified, then the requested Borrowing shall be
a Prime Borrowing.  If no Interest
Period is specified with respect to any requested Eurodollar Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month’s
duration.  Promptly following receipt of
a Borrowing Request in accordance with this Section, the Paying Agent shall
advise each relevant Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04.  Funding of Borrowings.


 


(a)           Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the
account of the Paying Agent most recently designated by it for such purpose by
notice to the Lenders.  The Paying Agent
will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained
with the Paying Agent and designated by the Borrower in the applicable
Borrowing Request.


 


(b)           Unless the Paying Agent shall have
received notice from a Lender prior to the proposed time of any Borrowing that
such Lender will not make available to the Paying Agent such Lender’s share of
such Borrowing, the Paying Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Paying Agent, then the applicable
Lender and the Borrower severally agree to pay to the Paying Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding
the date of payment to the Paying Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower, a rate of
interest of up to or equal to the rate applicable to Prime Loans, as the Paying
Agent shall determine in consultation with the Borrower.  If such Lender pays such amount to the
Paying Agent, then such amount shall constitute such Lender’s Loan included in
such Borrowing.


 


SECTION 2.05.  Interest Elections.


 


(a)           Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request.  Thereafter
during or after the Availability Period, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section.  The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.


 


10

















 


(b)           To make an election pursuant to this
Section, the Borrower shall notify the Paying Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery,
telecopy or email with PDF attachment to the Paying Agent of a written Interest
Election Request in a form approved by the Paying Agent and signed by the
Borrower.


 


(c)           Each telephonic and written Interest
Election Request shall specify the following information:


 


(i)      the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


 


(ii)     the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;


 


(iii)    whether
the resulting Borrowing is to be a Prime Borrowing or a Eurodollar Borrowing;
and


 


(iv)    if
the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


 


If any such
Interest Election Request requests a Eurodollar Borrowing but does not specify
an Interest Period, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


(d)           Promptly following receipt of an
Interest Election Request, the Paying Agent shall advise each relevant Lender
of the details thereof and of such Lender’s portion of each resulting
Borrowing.


 


(e)           If the Borrower fails to deliver a
timely Interest Election Request with respect to a Eurodollar Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to a Prime Borrowing.


 


SECTION 2.06.  Termination and Reduction
of Commitments.


 


(a)           Unless previously terminated, the
Commitments shall terminate on the Availability Termination Date.


 


(b)           The Borrower may at any time
terminate, or from time to time reduce, any of the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $10,000,000 and not less than $10,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.08, the
total Credit Exposures would exceed the total Commitments.


 


(c)           The Borrower shall notify the Paying
Agent of any election to terminate or reduce any of the Commitments under
paragraph (b) of this Section at least three Business Days prior to


 


11

















 


the effective date of such
termination or reduction, specifying such election and the effective date
thereof.  Promptly following receipt of
any notice, the Paying Agent shall advise the Lenders of the contents
thereof.  Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of Commitments delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities or
the closing of a capital markets transaction, in which case such notice may be
revoked by the Borrower (by notice to the Paying Agent on or prior to the
specified effective date) if such condition is not satisfied.  Any termination or reduction of the
Commitments shall be permanent.  Each
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.


 


SECTION 2.07.  Repayment of
Loans; Evidence of Debt; Term-Out Option.


 


(a)           The Borrower hereby unconditionally
promises to pay to the Paying Agent for the account of each relevant Lender the
then unpaid principal amount of each Loan to the Borrower on the Maturity Date.


 


(b)           Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender to the Borrower, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.


 


(c)           The Paying Agent shall maintain
accounts in which it shall record (i) the amount of each Loan made
hereunder, the Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Paying Agent hereunder for the account of the
Lenders and each Lender’s share thereof.


 


(d)           The entries made in the accounts
maintained pursuant to paragraph (b) or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Paying Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans to it in accordance with the
terms of this Agreement.


 


(e)           Any Lender may reasonably request
that Loans made by it to the Borrower be evidenced by a promissory note.  In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and substantially in the form of Exhibit C.  Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).


 


(f)            The Borrower may elect to extend the
Maturity Date to the first anniversary of the Availability Termination Date by
giving notice thereof to the Paying Agent by 1:00 p.m., New York City time, two
Business Days prior to the Availability Termination Date.  The Paying Agent shall promptly give notice
to the Lenders of any such extension.


 


12

















 


SECTION 2.08.  Prepayment of Loans.


 


(a)           Subject to prior notice in accordance
with paragraph (b) of this Section, the Borrower may at its option, at any
time, without premium or penalty of any kind (other than any payments required
under Section 2.16), prepay, in whole or in part, any Borrowings.


 


(b)           The Borrower shall notify the Paying
Agent by telephone (confirmed by telecopy or email with PDF attachment) of any
prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, on the date three Business Days
prior to the date of prepayment or (ii) in the case of prepayment of a
Prime Borrowing, not later than 10:00 a.m., New York City time, on the date of
prepayment.  Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of Commitments as contemplated by Section 2.06, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.06. 
Promptly following receipt of any such notice relating to a Borrowing,
the Paying Agent shall advise the relevant Lenders of the contents
thereof.  Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.10.


 


SECTION 2.09.  Fees.


 


(a)           The Borrower agrees to pay to the
Paying Agent for the ratable account of each Lender a facility fee (the “Facility
Fee”), which shall accrue from (and including) the Effective Date to (but
excluding) the Maturity Date on the daily amount of each Commitment of such
Lender (whether used or unused) at the rate per annum equal to the Applicable
Facility Fee Percentage; provided that, if such Lender continues to have any
Credit Exposure after its Commitment terminates, then such Facility Fee shall
continue to accrue on the daily amount of such Lender’s Credit Exposure from
and including the date on which its Commitment terminates but excluding the
date on which such Lender ceases to have any Credit Exposure.  Accrued Facility Fees shall be payable in
arrears on the third Business Day following the last day of March, June,
September and December of each year and on the Maturity Date, commencing on
October 5, 2004; provided that any facility fees accruing after the
Maturity Date shall be payable on demand. 
All Facility Fees shall be computed on the basis of a year of 365 or 366
days (as the case may be) and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


(b)           The Borrower agrees to pay to the
Paying Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Paying Agent.


 


(c)           If the average daily aggregate
principal amount of the Loans, outstanding for (i) the period beginning with
the Effective Date and ending on September 30, 2004, (ii) any calendar quarter
commencing with the fourth calendar quarter of 2004 and ending on the last day
of the calendar quarter immediately preceding the Maturity Date or (iii) the
period beginning on and including the day after the end of the calendar quarter
immediately preceding the Maturity Date and ending on the Maturity Date is in
excess of 50% of the average daily Commitments of the Lenders for such calendar
quarter or period (disregarding for this purpose any termination of any
Commitments that occurred during or prior to such calendar quarter or period),
the Company agrees to pay to the Paying Agent, for the ratable accounts of the
Lenders, a utilization fee (the “Utilization Fee”) at a rate per annum
equal to the Applicable Utilization Fee Percentage on such average daily
aggregate principal amount outstanding of Loans during


 


13

















 


such calendar quarter (or
period), payable in arrears on the third Business Day after the last day of
such calendar quarter (or period).  All
Utilization Fees shall be computed on the basis of a year of 365 days or 366
days (as the case may be) and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


(d)           All fees payable hereunder shall be
paid on the dates due, in immediately available funds, to the Paying
Agent.  Fees paid shall not be
refundable under any circumstances.


 


SECTION 2.10.  Interest.


 


(a)           The Loans comprising each
Prime Borrowing shall bear interest at a rate per annum equal to the Prime
Rate.


 


(b)           The Loans comprising each Eurodollar
Borrowing shall bear interest at a rate per annum equal to the Eurodollar Rate
for the Interest Period in effect for such Borrowing plus the Applicable
Margin; provided that 0.125% per annum shall be added to Applicable Margin
after the Availability Termination Date for any Loans outstanding after the
Availability Termination Date.


 


(c)           Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan; provided
that (i) in the event of any repayment or prepayment of any Loan (other than a
prepayment of a Prime Loan prior to the Maturity Date), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (ii) in the event of any conversion of any Eurodollar
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion and
(iii) all accrued interest on a Loan shall be payable upon the Maturity Date
and, if later, on the date such Loan is paid in full.


 


(d)           All interest hereunder shall be
computed on the basis of a year of 360 days, except that interest computed by
reference to the Prime Rate shall be computed on the basis of a year of 365
days or 366 days (as the case may be) and in each case, shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).  The applicable Prime Rate or
Eurodollar Rate shall be determined by the Paying Agent, and such determination
shall be conclusive absent manifest error.


 


SECTION 2.11.  Alternate Rate of
Interest.    If prior to the
commencement of any Interest Period for a Eurodollar Borrowing, the Paying
Agent determines (which determination shall be conclusive absent manifest
error) that adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, then the Paying Agent shall give
notice thereof to the Borrower and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Paying Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective and (ii) if any Borrowing Request by the Borrower requests
a Eurodollar Borrowing, such Borrowing shall be made as a Prime Borrowing.


 


SECTION 2.12.  Increased Costs.    In the event that by reason of any change
after the date of this Agreement in applicable law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration, application or interpretation thereof, or by reason of the
adoption or enactment after the date of this Agreement of any requirement or
directive (whether or not having the force of law) of any Governmental
Authority:


 


14

















 


(a)           any Lender shall, with respect to
this Agreement, be subject to any tax, levy, impost, charge, fee, duty,
deduction or withholding of any kind whatsoever (other than Excluded Taxes); or


 


(b)           any change shall occur in the
taxation of any Lender with respect to the principal or interest payable under
this Agreement (other than the imposition of any Excluded Taxes or any change
which affects solely the taxation of the total income of such Lender); or


 


(c)           any reserve or similar requirements
should be imposed on either the commitments to lend or the foreign claims of
deposits of any Lender;


 


and if any of the
above-mentioned measures shall result in a material increase in the cost to
such Lender of making or maintaining its Loans or Commitments or a material
reduction in the amount of principal or interest received or receivable by such
Lender in respect thereof, then upon prompt written notification (which shall
include the date of effectiveness of such change, adoption or enactment) and
demand being made by such Lender for such additional cost or reduction, the
Borrower shall pay to such Lender, within 30 days of such demand being made by
such Lender, such additional cost or reduction; provided, however,
that the Borrower shall not be responsible for any such cost or reduction that
may accrue to such Lender with respect to the period between the occurrence of
the event which gave rise to such cost or reduction and the date on which
notification is given by such Lender to the Borrower; and provided,
further, that the Borrower shall not be obligated to pay such Lender any
such additional cost or reduction unless such Lender certifies to the Borrower
that at such time such Lender shall be generally assessing such amounts on a
non-discriminatory basis against borrowers under agreements having provisions
similar to this Section; and provided, further, that any such
additional cost or reduction allocated to any Loan or Commitment shall not
exceed the Borrower’s pro rata share of all costs attributable to all loans or
advances or commitments to all borrowers by such Lender that collectively
result in the consequences for which such Lender is to be compensated by the
Borrower. Within 30 days of receipt of such notification, the Borrower will pay
such additional costs as may be applicable to the period subsequent to
notification or prepay in full all Loans to it outstanding under this Agreement
so affected by such additional costs, together with interest and fees accrued
thereon to the date of prepayment in full. Such Lender shall use reasonable
efforts (consistent with its internal policy applied on a non-discriminatory
basis and legal and regulatory restrictions) to designate a different
applicable lending office for the Loans made by it and its Commitments or to
take other appropriate actions if such designation or actions, as the case may
be, will avoid the need for, or reduce the amount of, any increased costs to
the Borrower incurred under this Section, and will not, in the opinion of such
Lender, be otherwise disadvantageous to such Lender.


 


SECTION 2.13.  Taxes.


 


(a)           Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Paying Agent, the
Co-Administrative Agents 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) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


(b)           In addition, the Borrower shall pay
any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.


 


15

















 


(c)           The Borrower shall indemnify the
Paying Agent, Co-Administrative Agents and each Lender, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Paying Agent,
Co-Administrative Agents or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the Paying
Agent or Co-Administrative Agents on their own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.


 


(d)           As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Paying Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Paying Agent.


 


(e)           Any Lender or Agent that is entitled
to an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Paying Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.


 


(f)            Each Lender and Agent shall use
reasonable efforts (consistent with its internal policy applied on a
non-discriminatory basis and legal and regulatory restrictions) to designate a
different applicable lending office for the Loans made by it and its
Commitments or to take other appropriate actions if such designation or
actions, as the case may be, will avoid the need for, or reduce the amount of,
any payments the Borrower is required to make under this Section 2.13, and will
not, in the opinion of such Lender or Agent, be otherwise disadvantageous to
such Lender or Agent.


 


SECTION 2.14.  Payments Generally.


 


(a)           Unless otherwise specified herein,
the Borrower shall make each payment required to be made by it hereunder
(including under Section 2.12, 2.13, 2.16, or otherwise) prior to 12:00 noon,
New York City time, on the date when due and in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Paying Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Paying Agent at its
offices at 111 Fannin Street, 10th Floor, Houston, Texas 77002,
Attention: Claudine Garcia, Loan and Agency Services Group, or at such other
office in the United States of America as directed by Paying Agent, except that
payments pursuant to Sections 2.09(b), 2.12, 2.13, 2.16 and 9.03 shall be made
directly to the Persons entitled thereto. The Paying Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension.


 


(b)           If at any time insufficient funds
are received by and available to the Paying Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and
fees then due to such parties, and (ii) second, to pay principal


 


16

















 


then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.


 


(c)           If any Lender shall, by exercising
any right of set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).  The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.


 


(d)           Unless the Paying Agent shall have
received notice from the Borrower prior to the time by which any payment from
the Borrower is due to the Paying Agent for the account of the relevant Lenders
hereunder that the Borrower will not make such payment, the Paying Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the relevant
Lenders the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the relevant Lenders severally agrees to repay to
the Paying Agent forthwith on demand the amount so distributed to such Lender
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Paying Agent, at
the Federal Funds Effective Rate.


 


(e)           If any Lender shall fail to make any
payment required to be made by it pursuant to Section 2.04(b) or 2.14(d), then
the Paying Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Paying Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections
until all such unsatisfied obligations are fully paid.


 


SECTION 2.15.  Mitigation Obligations;
Replacement of Lenders.    If any
Lender requests compensation, or is entitled to payments, under
Section 2.12 or Section 2.13 or is affected in the manner described in Section
2.17, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort (in the case of a claim for
compensation under, or payments pursuant to, Section 2.12 or Section 2.13
or in the case of illegality under Section 2.17) or at the expense and effort
of any such defaulting Lender, upon notice to such Lender and the Paying Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower shall
notify Bank of America (in its capacity as Co-Administrative Agent), (ii) the
Borrower shall have received the prior written consent of the Paying Agent,
which consent shall not unreasonably be withheld or delayed, (iii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued


 


17

















 


fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iv) in the case of any such assignment resulting from
a claim for compensation under, or payments pursuant to, Section 2.12 or
Section 2.13 or from illegality under Section 2.17, such assignment will result
in a reduction in such compensation or payments or eliminate the illegality, as
the case may be.  A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


 


SECTION 2.16.  Break Funding Payments.    In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.08(b) and is revoked in accordance herewith), or
(d) the assignment of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.15, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event.  In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount reasonably determined by such Lender to be equal to the
excess, if any, of (i) the amount of interest that such Lender would pay
for a deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last day of
the then current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the duration of the Interest Period that would
have resulted from such borrowing, conversion or continuation) if the interest
rate payable on such deposit were equal to the Eurodollar Rate for such
Interest Period, over (ii) the amount of interest (as reasonably
determined by such Lender) that such Lender would earn on such principal amount
for such period if such Lender were to invest such principal amount for such
period at the interest rate that would be bid by such Lender (or an affiliate
of such Lender) for deposits from other banks in the relevant currency in the
eurocurrency market at the commencement of such period.  A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error.  The Borrower shall pay
such Lender the amount shown as due on any such certificate within 15 days
after receipt thereof.


 


SECTION 2.17.  Illegality.    Notwithstanding any other provision
herein, if the adoption of or any change in applicable law or regulation or in
the interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Prime Loans into Eurodollar Loans shall
forthwith be canceled and (b) such Lender’s Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Prime Loans on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law.  If any such conversion or repayment of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to Section 2.16.  If circumstances subsequently change so that
any affected Lender shall determine that it is no longer so affected, such
Lender will promptly notify the Borrower and the Paying Agent, and upon receipt
of such notice, the obligations of such Lender to make or continue Eurodollar
Loans or to convert Prime Loans into Eurodollar Loans shall be reinstated.


 


18

















 


ARTICLE
III




REPRESENTATIONS OF THE BORROWER


 


The Borrower represents for and as to itself
as follows:


 


(a)           The Borrower has been duly organized
and is validly existing and in good standing under the laws of the jurisdiction
of its organization, and the Borrower has all requisite power and authority to
conduct its business, to own its properties and to execute, deliver and perform
its obligations under this Agreement.


 


(b)           The execution, delivery and
performance by the Borrower of this Agreement have been, or prior to the
Effective Date will be, duly authorized by all necessary corporate action and
do not and will not as of the Effective Date or any Borrowing Date, violate any
provision of any law or regulation, or contractual or corporate restrictions,
binding on the Borrower and material to the Borrower and its Subsidiaries,
taken as a whole.


 


(c)           As of the Effective Date, this
Agreement will constitute a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject however to
(i) the exercise of judicial discretion in accordance with general
principles of equity and (ii) bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting creditors’ rights heretofore or hereafter
enacted.


 


(d)           The proceeds of the Loans made to the
Borrower shall not be used for a purpose which violates Regulation U.


 


(e)           As of the date hereof, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against the Borrower or any Subsidiary or against any of their respective
properties or revenues (i) with respect to this Agreement or any of the
transactions contemplated hereby or (ii) that could reasonably be expected to
have a Material Adverse Effect (other than those litigations, investigations or
proceedings set forth in the Registration Statement).


 


(f)            (i) The combined statement of
financial position of the Borrower and its combined statements of earnings,
stockholder’s interest and cash flows as of and for the fiscal year ended
December 31, 2003 reported on by KPMG LLP, independent public accountants, and
set forth beginning on page F-3 of the Registration Statement, present fairly
(assuming completion of the transactions described in note 1 to such financial
statements), in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated subsidiaries as
of such date and for such period in accordance with GAAP and (ii) since
December 31, 2003 to the date hereof, other than those developments and events
described in the Registration Statement, there has been no development or event
that has had or could reasonably be expected to have a Material Adverse Effect
with respect to the Borrower and its Subsidiaries taken as a whole.


 


(g)           The Borrower and each of its Material
Subsidiaries is in compliance with all applicable laws, rules, regulations and
orders of, and all applicable restrictions imposed by, any Governmental
Authority applicable to it or its property, including, without limitation,
statutory insurance requirements, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect with respect to the
Borrower and its Subsidiaries taken as a whole.


 


19

















 


(h)           The Borrower is not (a) an
“investment company” as defined in the Investment Company Act of 1940 or
(b) a “holding company” as defined in the Public Utility Holding Company
Act of 1935.


 


ARTICLE IV




CONDITIONS


 


SECTION 4.01.  Effective Date.    The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):


 


(a)           The Co-Administrative Agents (or
their 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 Co-Administrative Agents (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 Co-Administrative Agents shall
have received a favorable written opinion (addressed to the Co-Administrative
Agents and the Lenders and dated the Effective Date) of in-house counsel for
the Borrower, substantially in the form of Exhibit B.  The Borrower hereby requests such counsel to deliver such
opinion.


 


(c)           The Co-Administrative Agents shall
have received such documents and certificates as the Co-Administrative Agents
or their counsel may reasonably request relating to the organization, existence
and, if applicable, good standing of the Borrower, the authorization of the
Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance reasonably
satisfactory to the Co-Administrative Agents and their counsel.


 


The
Co-Administrative Agents shall notify the Borrower and the relevant Lenders of
the Effective Date, and such notices shall be conclusive and binding.  Notwithstanding the foregoing, the
obligations of the Lenders to make Loans hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 9.02) at or prior to 3:00 p.m., New York City time, on May 28, 2004
(and, in the event such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).


 


SECTION 4.02.  Each Credit Event.    The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions (or waiver thereof in accordance with Section 9.02):


 


(a)           The representations of the Borrower
set forth in this Agreement (except for the representations set forth in
clauses (e) and (f)(ii) of Article III) shall be true and correct in all
material respects on and as of the date of such Borrowing.


 


(b)           At the time of and immediately after
giving effect to such Borrowing no Default or Event of Default shall have
occurred and be continuing.


 


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


 


20

















 


ARTICLE
V




AFFIRMATIVE COVENANTS


 


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


 


SECTION 5.01.  Financial
Statements and Other Information.The Borrower will furnish to the
Co-Administrative Agents and each Lender:


 


(a)           Annual Financial Statements.    As soon as available, but in any event
within 90 days after the end of each fiscal year of the Borrower, a copy of the
audited statement of financial position of the Borrower and its consolidated
subsidiaries, as at the end of such year and the related audited statements of
earnings, stockholder’s interest and cash flows for such year, reported on
without a “going concern” or like qualification or exception, or qualification
arising out of the scope of the audit, by KPMG LLP or other independent
certified public accountants of nationally recognized standing;


 


(b)           Quarterly Financial Statements.    As soon as available, but in any event not
later than 45 days after the end of each of the first three quarterly periods
of each fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated subsidiaries, as at the end of such
quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end of
such quarter;


 


(c)           Officer’s Certificate.    At the time of delivery of the financial
statements provided for in Sections 5.01(a) and 5.01(b) above, a certificate of
the chief financial officer or treasurer of the Borrower, (i) demonstrating
compliance with the financial covenant contained in Section 6.01 by calculation
thereof as of the end of each such fiscal period and (ii) stating that no
Default or Event of Default by the Borrower exists, or if any such Default or
Event of Default does exist, specifying the nature and extent thereof and what
action the Borrower proposes to take with respect thereto;


 


(d)           Reports.    Promptly upon transmission thereof, copies
of any filings and registrations with, and reports to, the Securities and
Exchange Commission, or any successor agency (other than registration
statements on Form S-8 or its equivalent), and copies of all financial
statements, proxy statements, notices and reports as the Borrower shall send to
its shareholders generally (excluding, in each case, exhibits, schedules or
attachments to any of the foregoing); and


 


(e)           Other Information.    With reasonable promptness upon any such
request, such other information regarding the business, operations, properties
or financial condition of the Borrower or any Subsidiary (including, without
limitation, the annual Statutory Statements of any Material Subsidiary that is
an insurance company), as the Co-Administrative Agents may reasonably request.


 


All
financial statements delivered pursuant to this Section shall be complete and
correct in all material respects and shall be prepared in accordance with
GAAP.  Timely filing of all documents
referred to in Section 5.01(a), (b) and (d) above with the Securities and
Exchange Commission shall constitute compliance with this Section 5.01, without
any requirement (except as provided in the next succeeding sentence) for the
Borrower to furnish such documents to any Agent or any Lender. The Borrower
agrees to provide hard copies of any statements required to be delivered
pursuant to this Section to any Lender upon the reasonable request of such
Lender made to the Borrower in writing pursuant to Section 9.01.


 


21

















 


SECTION 5.02.  Use of Proceeds.    The proceeds of the Loans made to the
Borrower hereunder will be used for general corporate purposes.


 


SECTION 5.03.  Books
and Records; Inspection Rights.  
The Borrower will, and will cause each of its Subsidiaries, to (a) keep
proper books of records and account in which full, true and correct entries, in
all material respects, are made of all dealings and transactions in relation to
its business and activities and (b) permit any representatives designated by
the Co-Administrative Agents or any Lender, upon any reasonable request with
reasonable advance notice, to visit and inspect during normal business hours
its properties, operations and books of account.


 


SECTION 5.04.  Notices
of Defaults.    Within five Business
Days after the Chief Executive Officer, Chief Financial Officer, General
Counsel, Treasurer or Secretary of the Borrower obtains knowledge of any
Default, if such Default is then continuing, the Borrower shall deliver to each
Lender a certificate of any senior officer of the Borrower setting forth the
details thereof and the action that the Borrower is taking or proposes to take
with respect to such Default.


 


SECTION 5.05.   Existence; Conduct of
Business.    The Borrower 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 and the Borrower will continue, and will cause
each Material Subsidiary to continue, to engage in business of the same general
type as now conducted (or proposed to be conducted) by the Borrower and its
Subsidiaries; provided that the foregoing shall not prohibit (i)  any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 or (ii) the termination of the
legal existence of any Subsidiary if the Borrower in good faith determines that
such termination is in the best interest of the Borrower and is not materially disadvantageous
to the Lenders.


 


SECTION 5.06.  Compliance with Laws.    The Borrower will, and will cause each of
its Material Subsidiaries to, comply with all applicable laws, rules,
regulations, and orders of, and all applicable restrictions imposed by, any Governmental
Authority applicable to it or its property, including, without limitation,
statutory insurance requirements, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect with respect to the
Borrower and its Subsidiaries taken as a whole.


 


ARTICLE
VI




NEGATIVE COVENANTS


 


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


 


SECTION 6.01.  Financial Condition
Covenant.    The Borrower will not
permit Consolidated Net Worth at the end of any fiscal quarter of the Borrower
to be less than the sum of (i) $6,900,000,000 and (ii) 40% of Consolidated Net
Income for each completed fiscal year of the Borrower ending after the
Effective Date and on or prior to the end of such fiscal quarter (without any
deduction for any fiscal year as to which there is a Consolidated Net Loss).


 


22

















 


SECTION 6.02.  Liens.The Borrower
will not, and will not permit any Material Subsidiary to, create, incur, assume
or permit to exist any Lien to secure any Indebtedness of the Borrower or any
Material Subsidiary owed to any Person (other than the Borrower and its
Subsidiaries) on any property or asset now owned or hereafter acquired by it,
except:


 


(a)           any Lien on any property or asset of
the Borrower or any Subsidiary existing on the date hereof;


 


(b)           any Lien existing on any property or
asset prior to the acquisition thereof by the Borrower or any Material
Subsidiary or existing on any property or asset of any Person that becomes a
Material Subsidiary after the date hereof prior to the time such Person becomes
a Material Subsidiary; provided that such Lien is not created in
contemplation of or in connection with the acquisition or such Person becoming
a Material Subsidiary, as the case may be;


 


(c)           any Lien on margin stock within the
meaning of Regulation U;


 


(d)           Liens on property or assets acquired,
constructed or improved by the Borrower or any Material Subsidiary; provided
that the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such property or assets;


 


(e)           Liens securing repayment of funds advanced
to the Borrower and its Subsidiaries under custody agreements, securities
lending arrangements, securities clearing agreements and similar arrangements
entered into in the ordinary course of business;


 


(f)            Liens in connection with Asset
Securitizations and Sale and Leaseback Transactions;


 


(g)           Liens in connection with any
repurchase agreement, buy/sell agreement or similar agreement or instrument on
assets or property transferred by the Borrower or any of its Subsidiaries
thereunder, securing the obligation of the Borrower or such Subsidiary to
repurchase or buy such assets or property as well as its other obligations
under such repurchase agreement, buy/sell agreement or similar agreement or
instrument;


 


(h)           Liens in favor of the Federal Home
Loan Bank Board (the “FHLBB”) to secure loans made by the FHLBB to the
Borrower or any Material Subsidiary in the ordinary course of business;


 


(i)            Liens on any real property securing
Indebtedness of the Borrower or any Material Subsidiary in respect of which (i)
the recourse of the holder of such Indebtedness (whether direct or indirect and
whether contingent or otherwise) under the instrument creating the Lien or
providing for the Indebtedness secured by the Lien is limited to such real
property directly securing such Indebtedness and (ii) such holder may not under
the instrument creating the Lien or providing for the Indebtedness secured by
the Lien collect by levy of execution or otherwise against assets or property
of the Borrower or such Material Subsidiary (other than such real property
directly securing such Indebtedness) if the Borrower or such Material
Subsidiary 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;


 


(j)            Liens arising out of the
refinancing, extension, renewal or refunding of any Indebtedness secured by any
Liens permitted by any of the foregoing clauses of this Section; provided
that such Indebtedness is not increased and is not secured by any additional
property or assets; and


 


23

















 


(k)           Liens not otherwise permitted by this
Section so long as the aggregate outstanding principal amount of Indebtedness
secured thereby does not exceed at the time of the incurrence of any such
Indebtedness, the greater of (x) $2,000,000,000 or (y) 15% of Consolidated Net
Worth of the Borrower and its Subsidiaries, as reflected in the most recent
financial statements of the Borrower and its consolidated subsidiaries
delivered pursuant to this Agreement.


 


SECTION 6.03.  Fundamental
Changes.  The Borrower will not (i) consolidate or merge with or
into any Person or (ii) sell, lease or otherwise transfer, directly or
indirectly, all or substantially all of the assets, of the Borrower and its
Subsidiaries, taken as a whole, or any Material Operating Segment in its
entirety, to any other Person; provided that the Borrower may
consolidate or merge with another Person if (A) the Borrower is the corporation
surviving such consolidation or merger and (B) immediately after giving effect
to such consolidation or merger, no Default shall have occurred and be
continuing.


 


SECTION 6.04.  Transactions with
Affiliates.    The Borrower will
not, and will not permit any Material Subsidiary to, enter into any material
transaction, including the purchase, sale, lease or exchange of property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower or any of its Subsidiaries)
unless such transaction either (a) is upon fair and reasonable terms no less
favorable to the Borrower, or such Material Subsidiary, as the case may be,
than would be applicable to a comparable arm’s-length transaction with a Person
that is not such an Affiliate or (b) in the Borrower’s good-faith judgment,
could not reasonably be expected to have a Material Adverse Effect.


 


ARTICLE
VII




EVENTS OF DEFAULT


 


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


 


(a)           the Borrower shall fail to pay any
principal of any Loan when and as the same shall become due and payable;


 


(b)           the Borrower shall fail to pay (i)
any interest on any Loan or (ii) any fee payable under Section 2.09, and such
failure shall not be cured within five Business Days after receipt by the
Borrower of notice of such failure from the Co-Administrative Agents;


 


(c)           any representation or warranty made
in writing or deemed made by the Borrower in this Agreement or any amendment
hereof or waiver hereto, or in any report, certificate, financial statement or
other document delivered pursuant to this Agreement or any amendment hereof or
waiver hereto, shall prove to have been incorrect in any material respect when
made or deemed made;


 


(d)           the Borrower shall fail to observe or
perform any covenant or agreement contained in Section 5.04 or 5.05 (with
respect to the Borrower’s existence) or in Section 6.01, 6.02 or 6.03;


 


24

















 


(e)           the Borrower shall fail to observe or
perform any covenant 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 Co-Administrative
Agents or the Required Lenders to the Borrower;


 


(f)            the Borrower or any Material
Subsidiary shall fail to make any payment of principal or interest when due (or
within any applicable grace period) with respect to any Material Indebtedness, or
a default shall have occurred in respect of any Material Indebtedness and such
default causes acceleration thereof;


 


(g)           an involuntary proceeding shall be
commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of the Borrower
or any Material Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Material Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for (i) 60 days with respect to any such proceeding
or petition under any Federal or state law or (ii) 90 days with respect to any
such proceeding or petition under any foreign law, or an order or decree
approving or ordering any of the foregoing shall be entered;


 


(h)           the Borrower or any Material
Subsidiary shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of any proceeding or petition
described in clause (g) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Material Subsidiary 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 corporate action for the purpose of effecting any of the foregoing;


 


(i)            one or more judgments for the
payment of money in an aggregate amount in excess of $100,000,000 (to the
extent not paid or covered by insurance) shall be entered by a court of
competent jurisdiction against the Borrower, any Material Subsidiary or any
combination thereof and the same shall remain undischarged, unvacated, unbonded
or unstayed for a period of (i) 60 consecutive days with respect to any
such judgment entered by any such court located in the United States of America
or (ii) 90 consecutive days with respect to any such judgment entered by any
such court located outside the United States of America; or


 


(j)            there shall have occurred a Change
in Control;


 


then, and in
every such event (other than an event with respect to the Borrower described in
clause (g) or (h) of this Article), and at any time thereafter during the
continuance of such event, the Co-Administrative Agents may, and at the request
of the Required Lenders shall, by notice to the Borrower, take either or both
of the following actions, at the same or different
times:  (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (g) or (h) of this Article, the
Commitments shall


 


25

















 


automatically
terminate and the principal of the Loans of the Borrower then outstanding, together
with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.


 


ARTICLE
VIII




THE AGENTS


 


Each of the Lenders hereby irrevocably
appoints each of the Co-Administrative Agents and the Paying Agent as its
agents (each, an “Agent”, and together, the “Agents”) and
authorizes the Agents to take such actions on its behalf and to exercise such
powers as are delegated to the Agents by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.


 


Each of the banks serving as an Agent
hereunder shall have the same rights and powers in its respective capacity as a
Lender as any other Lender and may exercise the same as though it were not an
Agent, and such bank and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not an Agent hereunder.


 


The Agents shall not have any duties or
obligations except those expressly set forth herein.  Without limiting the generality of the foregoing, (a) the
Agents shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the
Agents shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agents are required to exercise in writing by the
Required Lenders, and (c) except as expressly set forth herein, the Agents
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its subsidiaries
that is communicated to or obtained by the banks serving as Agents or any of
their Affiliates in any capacity.  The
Agents shall not be liable for any action taken or not taken by them with the
consent or at the request of the Required Lenders or all the Lenders, as the
case may be, or in the absence of its own gross negligence or willful
misconduct.  The Agents shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Agents by the Borrower or a Lender, and the Agents shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the relevant Agent or Agents.


 


The Agents shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by them to be genuine and to have been signed or sent by the proper
Person.  The Agents may rely upon any
statement made to them orally or by telephone and reasonably believed by them
to be made by the proper Person, and shall not incur any liability for relying
thereon.  The Agents may consult with
legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by them, and shall not be liable for any action
taken or not taken by them in accordance with the advice of any such counsel,
accountants or experts.


 


26

















 


The Agents may perform any and all their
duties and exercise their rights and powers by or through any one or more
sub-agents appointed by the Agents.  The
Agents or any such sub-agent may perform any and all its duties and exercise
its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Agents and any such sub-agent, and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein
as well as activities as the Agents.


 


Subject to the appointment and acceptance of
a successor Agent or Agents as provided in this paragraph, each of the Agents
may resign at any time by notifying the Lenders and the Borrower.  Upon any such resignation, the Required
Lenders shall have the right, with the written consent of the Borrower so long
as no Event of Default exists, to appoint a successor or successors.  If no successor or successors shall have
been so appointed by the Required Lenders with the written consent of the
Borrower and shall have accepted such appointment within 30 days after the
retiring Agent or Agents gives notice of its resignation, then the retiring
Agent or Agents may, on behalf of the Lenders, appoint a successor Agent or
Agents, each of which shall be a bank with an office in New York, New York and
having a combined capital and surplus of at least $500,000,000, or an Affiliate
of any such bank.  Upon the acceptance
of its appointment as an Agent hereunder by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
respective duties and obligations hereunder. 
The fees payable by the Borrower to any successor Agent be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor.  After the Agent’s
or Agents’ resignation hereunder, the provisions of this Article and Section
9.03 shall continue in effect for their respective benefit in respect of any
actions taken or omitted to be taken by it while it was acting as an Agent.


 


Each Lender acknowledges that it has,
independently and without reliance upon an Agent or Agents or any other Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon an Agent or Agents or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.


 


ARTICLE
IX




MISCELLANEOUS


 


SECTION 9.01.  Notices.  Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing (including by
electronic transmission) and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy or email
with PDF attachment, as follows:


 


(a)           if to the Borrower, to it at 6620
West Broad Street, Richmond, Virginia 23230, Attention:
Treasurer (Telecopy No. (804) 662-7522), e-mail: gary.prizzia@ge.com,
with a copy to: Genworth Financial, Inc, 6620 West Broad Street,
Richmond, Virginia 23230, Attention: General Counsel (Telecopy No. (804)
662-2414), e-mail: leon.roday@ge.com;


 


(b)           if to the Co-Administrative Agents,
to (i) JPMorgan Chase Bank, 111 Fannin Street, 10th Floor, Houston,
Texas 77002, Attention: Claudine Garcia, Loan and Agency Services Group
(Telecopy No. (713) 750-2223), email: claudine.y.garcia@jpmorgan.com, with a
copy to : JPMorgan


 


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Chase Bank, 270 Park Avenue, 4th
Floor, New York, New York, 10017, Attention: Heather Lindstrom (Telecopy No.
(212) 270-1511), email: heather.lindstrom@jpmorgan.com and/or (ii) Bank
of America, N.A.,  231 S. LaSalle
Street, Chicago, Illinois 60697, Attention: Debra Basler (Telecopy No. (312) 828-3600),
email: debra.basler@bankofamerica.com;


 


(c)           if to the Paying Agent, to it at
JPMorgan Chase Bank, 111 Fannin Street, 10th Floor, Houston, Texas
77002, Attention: Claudine Garcia, Loan and Agency Services Group (Telecopy No.
(713) 750-2223), email: claudine.y.garcia@jpmorgan.com; or


 


(d)           if to any other Lender, to it at its
address (or telecopy number or email) set forth in its Administrative
Questionnaire.


 


Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any Lender, to the Borrower and the Paying Agent).  All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.


 


SECTION 9.02.  Waivers;
Amendments.  Neither this Agreement
nor any provision hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Co-Administrative Agents with the
consent of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby or (iv) change any
of the provisions of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided, further that no such agreement shall
amend, modify or otherwise affect the rights or duties of any Agent hereunder
without the prior written consent of such Agent.


 


SECTION 9.03.  Expenses;
Indemnity.


 


(a)           The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Lead Arrangers, the Agents
and their respective Affiliates, including the reasonable fees, charges and
disbursements of a single counsel for the Lead Arrangers and the Agents in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement and any amendments,
modifications or waivers of the provisions hereof and (ii) all reasonable
out-of-pocket expenses incurred by the Agents or any Lender, including the
reasonable fees, charges and disbursements of any counsel for the Agents or any
Lender, in connection with the enforcement of its rights in connection with
this Agreement.


 


(b)           The Borrower shall indemnify the Lead
Arrangers, the Agents and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or the performance by the
parties hereto of their respective obligations hereunder, (ii) any Loan or
the use of the proceeds therefrom or (iii) any actual or prospective


 


28

















 


claim, litigation,
investigation or proceeding relating to any of the foregoing, regardless of
whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses have resulted from the gross
negligence or willful misconduct of such Indemnitee.  It is understood and agreed that, to the extent not precluded by
a conflict of interest, each Indemnitee shall endeavor to work cooperatively
with the Borrower with a view toward minimizing the legal and other expenses
associated with any defense and any potential settlement or judgment.  To the extent reasonably practicable and not
disadvantageous to any Indemnitee, it is anticipated that a single counsel
selected by the Borrower may be used. 
Settlement of any claim or litigation involving any material indemnified
amount will require the approvals of the Borrower (not to be unreasonably
withheld) and the relevant Indemnitee (not to be unreasonably withheld or
delayed).


 


SECTION 9.04.  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 Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent 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, the Lead
Arrangers and, to the extent expressly contemplated hereby, the Related Parties
of each of the Lead Arrangers, the Co-Administrative Agents, the Paying Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


(b)           Any Lender other than any Conduit
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or an Affiliate of a Lender, each of the
Borrower and the Paying Agent must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld) (it being
understood that it shall be reasonable for the Borrower to withhold consent if
the assignee has long-term debt ratings below BBB- from S&P or Baa3 from
Moody’s or has ratings at such levels but is on credit watch with negative
implications at either S&P or Moody’s), (ii) Bank of America (in its
capacity as Co-Administrative Agent) is notified of such Assignment; (iii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of an entire remaining amount of the assigning Lender’s
Commitment, the amount of the Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Paying Agent) shall not be
less than $5,000,000 unless each of the Borrower and the Paying Agent otherwise
consents, (iv) each partial assignment of a Lender’s rights and obligations
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations, (v) the parties to each assignment shall
execute and deliver to the Paying Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 payable by the assignor or the
assignee, (vi) the assignee, if it shall not be a Lender, shall deliver to
the Paying Agent an Administrative Questionnaire and (vii) the assignee, if
applicable, shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to the Borrower and the Paying Agent
the documentation described in Section 2.13(e); provided, further
that any consent of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default has occurred and is continuing.  Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement


 


29

















 


(and, in the case of an
Assignment and Acceptance 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 2.12, 2.13,
2.16, and 9.03).  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph 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 paragraph (e) of this Section. 
Notwithstanding the foregoing, any Conduit Lender may assign at any time
to its designating Lender hereunder without the consent of the Borrower or the
Paying Agent any or all of the Loans it may have funded hereunder and pursuant
to its designation agreement and without regard to the limitations set forth in
the first sentence of this Section 9.04(b).


 


(c)           The Paying Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Co-Administrative Agents 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 Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)           Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Paying Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register.  No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.


 


(e)           Any Lender other than any Conduit
Lender may, without the consent of the Borrower or the Co-Administrative
Agents, sell participations to one or more banks or other entities (each, a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans 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 Borrower, the Agents and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02 that affects such Participant.  Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.


 


(f)            A Participant shall not be entitled
to receive any greater payment under Section 2.12 or 2.13 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 Borrower’s prior written consent.  A Participant shall not be entitled to the
benefits of Section 2.13 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.13 as though it were a
Lender.


 


30

















 


(g)           Any Lender other than any Conduit
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.


 


(h)           Each of the Borrower, each Lender and
the Co-Administrative Agents hereby confirms that it will not institute against
a Conduit Lender or join any other Person in instituting against a Conduit
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued
by such Conduit Lender; provided, however, that each Lender designating
any Conduit Lender hereby agrees to indemnify, save and hold harmless each
other party hereto for any loss, cost, damage or expense arising out of its
inability to institute such a proceeding against such Conduit Lender during
such period of forbearance.


 


SECTION 9.05.  Counterparts;
Integration; Effectiveness.   This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This Agreement and any separate letter
agreements with respect to fees payable to the Lead Arrangers and the Agents
(as the case may be) constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Co-Administrative Agents and when the Co-Administrative Agents shall have
received and delivered to the Borrower, counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. 
Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or email with PDF attachment shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


SECTION 9.06.  Governing Law;
Jurisdiction.


 


(a)           This Agreement shall be construed in
accordance with and governed by the law of the State of New York.


 


(b)           Each party hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement against any other party or its properties
in the courts of any jurisdiction.


 


SECTION 9.07.  Right of Setoff.    If any Loan shall have become due and
payable, whether due to maturity, acceleration or otherwise, each Lender
(including for purposes of this Section


 


31

















 


each of its Affiliates which is
a regulated commercial bank) is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement.  The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.


 


SECTION 9.08.  Headings.   Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.


 


SECTION 9.09.  Confidentiality.    Each of the Co-Administrative Agents and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and
its Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (g)
with the consent of the Borrower or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Co-Administrative Agents or any
Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, “Information” means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Co-Administrative Agents or any
Lender on a nonconfidential basis prior to disclosure by the Borrower; provided
that, in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.


 


SECTION 9.10.  Severability.    Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.


 


SECTION 9.11.  WAIVER OF JURY TRIAL.    EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).


 


SECTION 9.12.  USA
Patriot Act.    Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October


 


32

















 


26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the Act.


 


33

















 


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


 


	
   

  	
  GENWORTH FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Richard P. McKenney

  	
   

  
	
   

  	
   

  	
  Name:
  Richard P. McKenney

  
	
   

  	
   

  	
  Title:
  Senior Vice President - Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK,

  
	
   

  	
  individually
  and as Co-Administrative Agent

  and Paying Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Robert Anastasio

  	
   

  
	
   

  	
   

  	
  Name:
  Robert Anastasio

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  individually
  and as Co-Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Debra Basler

  	
   

  
	
   

  	
   

  	
  Name:
  Debra Basler

  
	
   

  	
   

  	
  Title:
  Principal

  



 


Signature Page to Genworth 364-day Credit Agreement


 

















 


	
   

  	
  ABN AMRO BANK N.V.

  	
   

  
	
   

  	
  [Name
  of Lender]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Neil R. Stein

  	
  /s/
  Michael DeMarco

  
	
   

  	
   

  	
  Name:
  Neil R. Stein

  	
  Micheal DeMarco

  
	
   

  	
   

  	
  Title:
  Group Vice President

  	
  Assistant Vice President

  
					



 


 

















 


	
   

  	
  BARCLAYS
  BANK PLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Alison A. McGuigan

  	
   

  
	
   

  	
   

  	
  Name:
  Alison A. McGuigan

  
	
   

  	
   

  	
  Title:
  Associate Director

  
					



 


 


 

















 


	
   

  	
  BNP
  Paribas

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Phil Truesdale

  	
   

  
	
   

  	
   

  	
  Name:
  Phil Truesdale

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Joshua Landau

  	
   

  
	
   

  	
   

  	
  Name:
  Joshua Landau

  
	
   

  	
   

  	
  Title:
  Vice President

  
					



 


 


 

















 


 


	
   

  	
  Citicorp
  North America, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Maria G. Hackley

  	
   

  
	
   

  	
   

  	
  Name:
  Maria G. Hackley

  
	
   

  	
   

  	
  Title:
  Managing Director

  
					



 


 


 

















 


	
   

  	
  Credit Suisse First Boston

  acting through its Cayman Islands Branch

  	
   

  
	
   

  	
  [Name
  of Lender]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jay Chall

  	
   

  
	
   

  	
   

  	
  Name:
  Jay Chall

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Brian T. Caldwell

  	
   

  
	
   

  	
   

  	
  Name:
  Brian T. Caldwell

  
	
   

  	
   

  	
  Title:
  Director

  
					



 


 


 

















 


 


	
   

  	
  Deutsche
  Bank AG New York Branch

  	
   

  
	
   

  	
  [Name
  of Lender]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Thomas A. Foley

  	
   

  
	
   

  	
   

  	
  Name:
  Thomas A. Foley

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Deutsche Bank AG New York Branch

  	
   

  
	
   

  	
  [Name
  of Lender]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Belinda Wheeler

  	
   

  
	
   

  	
   

  	
  Name:
  Belinda Wheeler

  
	
   

  	
   

  	
  Title:
  Vice President

  
					



 


 


 

















 


 


	
   

  	
  HSBC
  Bank USA

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Anthony C. Valencourt

  	
   

  
	
   

  	
   

  	
  Name:
  Anthony C. Valencourt

  
	
   

  	
   

  	
  Title:
  Managing Director

  
					



 


 


 

















 


 


	
   

  	
  KeyBank
  National Association

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mary K. Young

  	
   

  
	
   

  	
   

  	
  Name:
  Mary K. Young

  
	
   

  	
   

  	
  Title:
  Vice President

  
					



 


 


 

















 


 


	
   

  	
  Lehman
  Brothers Bank, FSB

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gary T. Taylor

  	
   

  
	
   

  	
   

  	
  Name:
  Gary T. Taylor

  
	
   

  	
   

  	
  Title:
  Vice President

  
					



 


 


 

















 


 


	
   

  	
  Merrill Lynch Bank USA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Louis Alder

  	
   

  
	
   

  	
   

  	
  Name:
  Louis Alder

  
	
   

  	
   

  	
  Title:
  Director

  



 


 


 

















 


 


	
   

  	
  Morgan Stanley Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Daniel Twenge

  	
   

  
	
   

  	
   

  	
  Name:
  Daniel Twenge

  
	
   

  	
   

  	
  Title:Vice
  President

  
	
   

  	
   

  	
  Morgan Stanley Bank

  	
   

  
					



 


 

















 


 


	
   

  	
  Sumitomo Mitsui Banking Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Yasuhiko Imai

  	
   

  
	
   

  	
   

  	
  Name:
  Yasuhiko Imai

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


 


 

















 


 


	
   

  	
  SunTrust
  Bank

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mark A. Flatin

  	
   

  
	
   

  	
   

  	
  Name:
  Mark A. Flatin

  
	
   

  	
   

  	
  Title:
  Director

  
					



 


 


 

















 


 


	
   

  	
  The
  Bank of New York

  	
   

  
	
   

  	
  [Name
  of Lender]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jason Knight

  	
   

  
	
   

  	
   

  	
  Name:
  Jason Knight

  
	
   

  	
   

  	
  Title:
  Vice President

  
					



 


 


 

















 


 


	
   

  	
  UBS
  LOAN FINANCE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Wilfred V. Saint

  	
   

  
	
   

  	
   

  	
  Name:
  Wilfred V. Saint

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
           Banking
  Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Joselin Fernandes

  	
   

  
	
   

  	
   

  	
  Name:
  Joselin Fernandes

  
	
   

  	
   

  	
  Title:
  Associate Director

  
	
   

  	
   

  	
           Banking
  Products Services, US

  



 


 


 

















 


 


	
   

  	
  William Street Commitment Corporation

  
	
   

  	
  (Recourse
  only to assets of William Street Commitment
 Corporation)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jennifer M. Hill

  	
   

  
	
   

  	
  Jennifer
  M. Hill

  
	
   

  	
  CFO