Exhibit
10.40


 




 





 


FIVE-YEAR 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




 





 


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


 


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.   Letters of
  Credit

  	
   

  
	
  SECTION 2.05.   Funding of
  Borrowings.

  	
   

  
	
  SECTION 2.06.   Interest
  Elections.

  	
   

  
	
  SECTION 2.07.   Termination and
  Reduction of Commitments.

  	
   

  
	
  SECTION 2.08.  
  Repayment of Loans; Evidence of Debt.

  	
   

  
	
  SECTION 2.09.   Prepayment of
  Loans.

  	
   

  
	
  SECTION 2.10.   Fees.

  	
   

  
	
  SECTION 2.11.   Interest.

  	
   

  
	
  SECTION 2.12.   Alternate Rate
  of Interest.

  	
   

  
	
  SECTION 2.13.   Increased Costs.

  	
   

  
	
  SECTION 2.14.   Taxes.

  	
   

  
	
  SECTION 2.15.   Payments
  Generally.

  	
   

  
	
  SECTION 2.16.   Mitigation
  Obligations; Replacement of Lenders.

  	
   

  
	
  SECTION 2.17.   Break Funding
  Payments.

  	
   

  
	
  SECTION 2.18.   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.

  	
   

  



 


ii

















 


	
  SECTION 6.04.   Transactions
  with Affiliates.

  	
   

  
	
   

  	
   

  
	
  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

  	
   

  	
  0.08%

  
	
  II

  	
   

  	
  A
  or A2

  	
   

  	
  0.09%

  
	
  III

  	
   

  	
  A-or
  A3

  	
   

  	
  0.10%

  
	
  IV

  	
   

  	
  BBB+
  or Baa1

  	
   

  	
  0.125%

  
	
  V

  	
   

  	
  <BBB or Baa2

  	
   

  	
  0.15%

  



 


“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

  	
   

  	
  0.17%

  
	
  II

  	
   

  	
  A
  or A2

  	
   

  	
  0.21%

  
	
  III

  	
   

  	
  A-or
  A3

  	
   

  	
  0.275%

  
	
  IV

  	
   

  	
  BBB+
  or Baa1

  	
   

  	
  0.375%

  
	
  V

  	
   

  	
  <BBB or Baa2

  	
   

  	
  0.60%

  



 

















 


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 Maturity Date
and the date of termination of the relevant Commitments.


 


“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 2.07 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 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


 


3

















 


2.13, 2.14, 2.17 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 and its LC Exposure 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 such Lender’s failure or
inability to comply with Section 2.14(e), except to the extent that such
Lender’s 


 


4

















 


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 2.14(a).


 


“Facility
Fee” has the meaning given to it in Section 2.10(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 2.06.


 


“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.


 


“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


 


5

















 


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.


 


“Issuing
Lender” means JPMorgan Chase Bank or any Affiliate thereof, in its capacity
as issuer of any Letter of Credit, which is wholly owned, directly or
indirectly, by JPMorgan Chase & Co. 
At the request of the Borrower, the Issuing Lender shall be JPMorgan
Chase Bank or an Affiliate with then current credit ratings at least equivalent
to those of JPMorgan Chase Bank.


 


“LC Disbursement”
means a payment made by the Issuing Lender pursuant to a Letter of Credit.


 


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


 


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


 


“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.


 


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


 


“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


 


6

















 


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 fifth anniversary of the Effective Date.


 


“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.


 


7

















 


“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.


 


“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 2.10(d) 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.


 


8

















 


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.


 


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. 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 2.12, 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.


 


9

















 


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;


 


(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 2.05.


 


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.  Letters
of Credit


 


(a)           General.  Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Letters of Credit for
its own account, in a form reasonably acceptable to the Paying Agent and the
Issuing Lender, at any time and from time to time during the Availability
Period.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Lender relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.


 


(b)           Notice of Issuance, Amendment,
Renewal, Extension; Certain Conditions. 
To request the issuance of a Letter of Credit (or the amendment, renewal
or extension of an outstanding Letter of Credit), the Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Lender) to the Issuing Lender
(no less than five Business Days in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, the date of issuance, amendment, renewal or extension, the date on
which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Lender, the
Borrower also shall submit a letter of credit application on the Issuing
Lender’s standard form in connection with any request for a Letter of
Credit.  A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the


 


10

















 


Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $300,000,000 and
(ii) the sum of the total Credit Exposures shall not exceed the total
Commitments.


 


(c)           Expiration Date.  Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Maturity Date.


 


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


 


(e)           Reimbursement.    If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Paying Agent an amount equal to such LC
Disbursement not later than 4:00 p.m., New York City time, on the Business Day
immediately following the day that the Issuing Lender gives notice to the
Borrower of such LC Disbursement; provided that the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 or 2.06 that such payment be financed with a Borrowing in an
equivalent amount and, to the extent so financed, the Borrower’s obligation to
make such payment shall be due on the date of, and be discharged and replaced
by, the Borrowing.  If the Borrower
fails to make such payment when due, the Paying Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Lender shall pay to the Paying Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in
Section 2.05 with respect to Loans made by such Lender (and
Section 2.05 shall apply, mutatis  mutandis, to the payment
obligations of the Lenders), and the Paying Agent shall promptly pay to the
Issuing Lender the amounts so received by it from the Lenders.  Promptly following receipt by the Paying
Agent of any payment from the Borrower pursuant to this paragraph, the Paying
Agent shall distribute such payment to the Issuing Lender or, to the extent
that Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Lender, then to such Lenders and the Issuing Lender as their interests
may appear.  Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Lender for any LC
Disbursement (other than the funding of Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


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


 


11

















 


(i)            any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any
term or provision therein;


 


(ii)           any amendment or
waiver of or any consent to departure from all or any of the provisions of any
Letter of Credit or this Agreement;


 


(iii)           the existence of
any claim, setoff, defense or other right that the Borrower, any other party
guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or
other Affiliate thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Lender, the Paying Agent or
any Lender or any other Person, whether in connection with this Agreement or
any other related or unrelated agreement or transaction;


 


(iv)          any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect;


 


(v)            payment by the
Issuing Lender under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit;
and


 


(vi)           any other act or
omission to act or delay of any kind of the Issuing Lender, the Lenders, the
Paying Agent or any other Person or any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of the
Borrower’s obligations hereunder.


 


Neither the Paying Agent, the Lenders nor the
Issuing Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder,
including any of the circumstances specified in clauses (i) through (vi) above,
as well as any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Lender; provided
that the foregoing shall not be construed to excuse the Issuing Lender from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender’s failure to exercise the agreed standard
of care (as set forth below) in determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that the
Issuing Lender shall have exercised the agreed standard of care in the absence
of gross negligence or willful misconduct on the part of the Issuing
Lender.  Without limiting the generality
of the foregoing, it is understood that the Issuing Lender may accept documents
that appear on their face to be in substantial compliance with the terms of a
Letter of Credit, without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit; provided that the
Issuing Lender shall have the right, in its sole discretion, to decline to
accept such documents and to make such payment if such documents are not in
strict compliance with the terms of such Letter of Credit.


 


(g)           Disbursement Procedures.    The Issuing Lender shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. 
The Issuing Lender shall promptly notify the Paying Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Lender has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice


 


12

















 


shall not relieve the Borrower
of its obligation to reimburse the Issuing Lender and the Lenders with respect
to any such LC Disbursement.


 


(h)           Interim Interest.    If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Prime Loans.  Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Lender, except that interest accrued on
and after the date of payment by any Lender pursuant to paragraph (e) of this
Section to reimburse the Issuing Lender shall be for the account of such Lender
to the extent of such payment.


 


(i)            Replacement of the Issuing Lender.    The Issuing Lender may be replaced at any
time by written agreement among the Borrower, the replaced Issuing Lender and
the successor Issuing Lender, with the consent of the Paying Agent (such
consent not to be unreasonably withheld or delayed).  The Paying Agent shall notify the Lenders of any such replacement
of the Issuing Lender.  From and after
the effective date of any such replacement, (i) the successor Issuing Lender
shall have all the rights and obligations of the Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Lender” shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require.  After the replacement of an Issuing Lender
hereunder, the replaced Issuing Lender shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Lender under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.


 


(j)            Cash Collateralization.    If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Paying Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Paying Agent, in
the name of the Paying Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in
clause (g) or (h) of Article VII. 
Such deposit shall be held by the Paying Agent as collateral for the
payment and performance of the obligations of the Borrower under this Agreement
and shall be invested by or on behalf of the Paying Agent in a “money market
fund” (or the private equivalent thereof), or in investments permitted to be
held by a “money market fund”, as such term is used in Rule 2a-7 of the
Securities and Exchange Commission under the Investment Company Act of 1940, as
amended.  The Paying Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account.  Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Paying Agent and at the
Borrower’s risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Paying Agent to reimburse
the Issuing Lender for LC Disbursements for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent
of Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement.  If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the


 


13

















 


extent not applied as
aforesaid) shall be returned to the Borrower within one Business Day after all
Events of Default have been cured or waived.


 


SECTION 2.05.  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 2.06.  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.


 


(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


 


14

















 


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 2.07.  Termination
and Reduction of Commitments.


 


(a)           Unless previously terminated, the
Commitments shall terminate on the Maturity 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 2.09, 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 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.


 


15

















 


SECTION 2.08.  Repayment of
Loans; Evidence of Debt.


 


(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), 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).


 


SECTION 2.09.  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 2.17), 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 2.07, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with
Section 2.07. 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


 


16

















 


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 2.11.


 


SECTION 2.10.  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 date on which the Commitments
terminate, commencing on October 5, 2004; provided that any facility
fees accruing after the date on which the relevant Commitments terminate 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 (i) to the
Paying Agent for the ratable account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at a
rate per annum equal to the Applicable Margin applicable to interest on
Eurodollar Loans on the average daily amount of such Lender’s LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the
date on which such Lender’s Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to the Issuing Lender a
fronting fee, which shall accrue at the rate of 0.125% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements), as well as
the Issuing Lender’s standard fees with respect to the issuance, amendment,
negotiation, payment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. 
Participation fees and fronting fees shall be payable on the third
Business Day following the last day of March, June, September and December of
each year and on the date that the Commitments terminate, commencing October 5,
2004; provided that any such fees accruing after the date on which the
Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Lender pursuant to this
paragraph shall be payable within 10 days after demand.  All participation fees and fronting 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).


 


(c)           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.


 


(d)           If the average daily aggregate
principal amount of the Loans and LC Exposure, 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


 


17

















 


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 and LC Exposure during 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).


 


(e)           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 2.11.  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.


 


(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 end of the Availability Period), 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
termination of the Commitments applicable to such Loan and upon the Maturity
Date.


 


(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 2.12.  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 2.13.  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:


 


18

















 


(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 participations in Letters of Credit 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 2.14.  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.


 


19

















 


(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 2.14, and will
not, in the opinion of such Lender or Agent, be otherwise disadvantageous to
such Lender or Agent.


 


SECTION 2.15.  Payments
Generally.


 


(a)           Unless otherwise specified herein,
the Borrower shall make each payment required to be made by it hereunder
(including under Section 2.13, 2.14, 2.17, 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 2.10(c), 2.13, 2.14, 2.17 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, unreimbursed LC Disbursements, 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,


 


20

















 


and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements 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 or participations in LC
Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC
Disbursements 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 and participations in LC
Disbursements 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
and participations in LC Disbursements; 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 or participations in LC Disbursements 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 on 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 2.05(b) or 2.15(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 2.16.  Mitigation
Obligations; Replacement of Lenders.   
If any Lender requests compensation, or is entitled to payments, under
Section 2.13 or Section 2.14 or is affected in the manner described in
Section 2.18, 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 2.13
or Section 2.14 or in the case of illegality under Section 2.18) 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


 


21

















 


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 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 2.13 or Section 2.14
or from illegality under Section 2.18, 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 2.17.  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 2.09(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 2.16, 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 2.18.  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 2.17.  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.


 


22

















 


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 as of any Borrowing Date or the
date of issuance, amendment, renewal or extension of any Letter of Credit,
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.


 


23

















 


(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 or the obligation of the Issuing Lender to issue a
Letter of Credit on the occasion of any Borrowing or any such issuance of a
Letter of Credit (as the case may be) 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 or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.


 


(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.


 


24

















 


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, all LC Disbursements shall have been reimbursed and all Letters of Credit
shall have expired or terminated, 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.


 


25

















 


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 and all Letters of Credit
have expired or terminated and all LC Disbursements shall have been reimbursed,
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).


 


26

















 


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;


 


27

















 


(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


 


(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 or any reimbursement obligation in respect of any LC
Disbursement 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 2.10, 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;


 


28

















 


(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


 


29

















 


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.


 


30

















 


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


 


31

















 


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;


 


(d)           if to the Issuing Lender, 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


 


(e)           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 LC
Disbursement 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
LC Disbursement, 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”)


 


32

















 


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 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) the Issuing Lender must give
its prior consent (which consent shall not be unreasonably withheld or
delayed), (iii) Bank of America (in its capacity as Co-Administrative Agent) is
notified of such Assignment; (iv) 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, (v) 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, (vi) 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, (vii) the assignee, if it shall not be a
Lender, shall deliver to the Paying Agent an Administrative Questionnaire and
(viii) 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 2.14(e); provided,
further that any consent of the Borrower otherwise


 


33

















 


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 (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 2.13, 2.14, 2.17, 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 2.13, 2.14 and 2.17
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.


 


34

















 


(f)            A Participant shall not be entitled
to receive any greater payment under Section 2.13 or 2.14 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 2.14 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 2.14 as though it were a
Lender.


 


(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.


 


35

















 


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 or Letter of Credit shall have
become due and payable, whether due to maturity, acceleration or otherwise, each
Lender (including for purposes of this Section 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


 


36

















 


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 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.


 


37

















 


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
5-year Credit Agreement


 

















 


	
   

  	
  ABN AMRO BANK N.V.

  	
   

  
	
   

  	
  [Name of Lender]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neil R. Stein

  	
   

  	 

	
   

  	
   

  	
  Name: Neil
  R. Stein

  	 

	
   

  	
   

  	
  Title:   Group Vice President

  	 

	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael DeMarco

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Michael DeMarco

  
	
   

  	
   

  	
  Title:   Assistant Vice President

  
							



 


Signature Page to Genworth
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  BARCLAYS BANK PLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alison A. McGuigan

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Alison
  A. McGuigan

  
	
   

  	
   

  	
  Title:   Associate Director

  
					



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
  BNP Paribas

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Phil Truesdala

  	
   

  	 

	
   

  	
   

  	
  Name: Phil
  Truesdala

  	 

	
   

  	
   

  	
  Title:   Director

  	 

	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua Landau

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Joshua
  Landau

  
	
   

  	
   

  	
  Title:   Vice President

  
							



 


Signature Page to Genworth
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  Citigroup North
  America, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maria G. Hackley

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Maria
  G. Hackley

  
	
   

  	
   

  	
  Title:   Managing Director

  
					



 


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  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

  



 


Signature Page to Genworth
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  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

  



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
  HSBC Bank USA

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony C. Valencourt

  	
   

  
	
   

  	
   

  	
  Name: Anthony
  C. Valencourt

  
	
   

  	
   

  	
  Title:   Managing Director

  
				



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
  KeyBank National
  Association

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary K. Young

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Mary
  K. Young

  
	
   

  	
   

  	
  Title:   Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
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  Lehman Brothers Bank,
  FSB

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary T. Taylor

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Gary
  T. Taylor

  
	
   

  	
   

  	
  Title:   Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
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  MERRIL LYNCH BANK USA

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Louis
  Alder

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN STANLEY BANK

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel Twenge

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Daniel
  Twenge

  
	
   

  	
   

  	
  Title:   Vice President

             
  Morgan Stanley Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUMITOMO MITSUI
  BANKING COPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yasuhiko Imai

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Yasuhiko
  Imai

  
	
   

  	
   

  	
  Title:   Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
  SunTrust Bank

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark A. Flatin

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Mark
  A. Flatin

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
  The Bank of New York

  	
   

  
	
   

  	
  [Name of Lender]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason Knight

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Jason
  Knight

  
	
   

  	
   

  	
  Title:   Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UBS LOAN FINANCE LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Willfred V. Saint

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Willfred
  V. Saint

  
	
   

  	
   

  	
  Title:   Director

             
  Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joselin Fernandes

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Joselin Fernandes

  
	
   

  	
   

  	
  Title:   Associate Director

             
  Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


Signature Page to Genworth
5-year Credit Agreement


 

















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WILLIAM STREET
  COMMITMENT CORPORATION (Recourse only to assets of William Street Commitment
  Corporation)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer M. Hill

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Jennifer
  M. Hill

  
	
   

  	
   

  	
  Title:   CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


Signature Page to Genworth
5-year Credit Agreement