EX-10.1



 







Exhibit 10.1






 









CREDIT AGREEMENT




among




ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD



and



ALLIED WORLD ASSURANCE COMPANY, LTD,



as the Borrowers,




The LENDERS Party Hereto,




BANK OF AMERICA, N.A,

as Syndication Agent




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Fronting Bank and L/C Agent




$400,000,000 Unsecured Senior Revolving Credit Facility




BANC OF AMERICA SECURITIES LLC

and

WACHOVIA CAPITAL MARKETS, LLC,

as Joint Lead Arrangers and Joint Bookrunners




Dated as of November 27, 2007





 








 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 
	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	Section 1.1
	 	Defined Terms	 	1
	Section 1.2
	 	Accounting Terms; GAAP and SAP	 	22
	Section 1.3
	 	Other Terms; Construction	 	23
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	AMOUNT AND TERMS OF THE CREDIT

	 
	 	 	 	 
	Section 2.1
	 	Commitments	 	23
	Section 2.2
	 	Borrowings	 	24
	Section 2.3
	 	Disbursements; Funding Reliance; Domicile of Loans	 	25
	Section 2.4
	 	Evidence of Debt; Notes	 	26
	Section 2.5
	 	Termination and Reduction of Commitments	 	26
	Section 2.6
	 	Mandatory Payments and Prepayments	 	27
	Section 2.7
	 	Voluntary Prepayments	 	27
	Section 2.8
	 	Interest	 	28
	Section 2.9
	 	Fees	 	29
	Section 2.10
	 	Conversions and Continuations	 	30
	Section 2.11
	 	Method of Payments; Computations; Apportionment of Payments	 	31
	Section 2.12
	 	Recovery of Payments	 	32
	Section 2.13
	 	Use of Proceeds	 	33
	Section 2.14
	 	Pro Rata Treatment	 	33
	Section 2.15
	 	Increased Costs; Change in Circumstances; Illegality	 	34
	Section 2.16
	 	Taxes	 	36
	Section 2.17
	 	Compensation	 	39
	Section 2.18
	 	Replacement Lenders	 	39
	Section 2.19
	 	Increase in Commitments	 	40
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	LETTERS OF CREDIT

	 
	 	 	 	 
	Section 3.1
	 	Syndicated Letters of Credit	 	43
	Section 3.2
	 	Participated Letters of Credit	 	46
	Section 3.3
	 	Conditions Precedent to the Issuance of Letters of Credit	 	49
	Section 3.4
	 	Obligations Absolute	 	50
	Section 3.5
	 	Interest	 	52
	Section 3.6
	 	Interest Rate Determination	 	52
	Section 3.7
	 	Collateralization of Letters of Credit	 	52
	Section 3.8
	 	Use of Letters of Credit	 	53






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	 	 	 	Page
	ARTICLE IV

	 
	 	 	 	 
	CONDITIONS PRECEDENT

	 
	 	 	 	 
	Section 4.1
	 	Conditions Precedent to the Closing Date	 	53
	Section 4.2
	 	Conditions Precedent to All Credit Extensions	 	56
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	Section 5.1
	 	Organization and Power	 	57
	Section 5.2
	 	Authorization; Enforceability	 	57
	Section 5.3
	 	No Violation	 	57
	Section 5.4
	 	Governmental and Third-Party Authorization; Permits	 	57
	Section 5.5
	 	Litigation	 	58
	Section 5.6
	 	Taxes	 	58
	Section 5.7
	 	Subsidiaries	 	59
	Section 5.8
	 	Full Disclosure	 	59
	Section 5.9
	 	Absence of Default	 	59
	Section 5.10
	 	Ownership of Property; Liens	 	59
	Section 5.11
	 	Margin Regulations	 	59
	Section 5.12
	 	No Material Adverse Effect	 	60
	Section 5.13
	 	Financial Matters	 	60
	Section 5.14
	 	ERISA	 	61
	Section 5.15
	 	Environmental Matters	 	62
	Section 5.16
	 	Compliance with Laws	 	62
	Section 5.17
	 	Regulated Industries	 	62
	Section 5.18
	 	Insurance	 	62
	Section 5.19
	 	OFAC; PATRIOT Act	 	62
	Section 5.20
	 	Status under Bermuda Law	 	63
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 
	Section 6.1
	 	GAAP Financial Statements	 	64
	Section 6.2
	 	Statutory Financial Statements	 	64
	Section 6.3
	 	Other Business and Financial Information	 	65
	Section 6.4
	 	Corporate Existence; Franchises; Maintenance of Properties	 	67
	Section 6.5
	 	Compliance with Laws	 	67
	Section 6.6
	 	Payment of Obligations	 	68
	Section 6.7
	 	Insurance	 	68
	Section 6.8
	 	Maintenance of Books and Records; Inspection	 	68
	Section 6.9
	 	Dividends	 	68
	Section 6.10
	 	OFAC; PATRIOT Act Compliance	 	69
	Section 6.11
	 	Further Assurances	 	69
	Section 6.12
	 	Use of Proceeds	 	69






ii  









 






	 	 	 	 	 
	 
	 	 	 	Page
	ARTICLE VII

	 
	 	 	 	 
	FINANCIAL COVENANTS

	 
	 	 	 	 
	Section 7.1
	 	Maximum Consolidated Indebtedness to Total Capitalization	 	69
	Section 7.2
	 	Minimum Consolidated Net Worth	 	69
	Section 7.3
	 	Minimum Financial Strength Rating	 	70
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	NEGATIVE COVENANTS

	Section 8.1
	 	Fundamental Changes	 	70
	Section 8.2
	 	Indebtedness	 	70
	Section 8.3
	 	Liens	 	72
	Section 8.4
	 	Disposition of Assets	 	72
	Section 8.5
	 	Transactions with Affiliates	 	73
	Section 8.6
	 	Restricted Payments	 	73
	Section 8.7
	 	Lines of Business	 	74
	Section 8.8
	 	Fiscal Year	 	74
	Section 8.9
	 	Accounting Changes	 	74
	Section 8.10
	 	Limitation on Certain Restrictions	 	74
	Section 8.11
	 	Private Act	 	74
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	EVENTS OF DEFAULT

	 
	 	 	 	 
	Section 9.1
	 	Events of Default	 	75
	Section 9.2
	 	Remedies; Termination of Commitments, Acceleration, Etc	 	77
	Section 9.3
	 	Remedies; Set Off	 	78
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT

	 
	 	 	 	 
	Section 10.1
	 	Appointment and Authority	 	78
	Section 10.2
	 	Rights as a Lender	 	79
	Section 10.3
	 	Exculpatory Provisions	 	79
	Section 10.4
	 	Reliance by Administrative Agent	 	80
	Section 10.5
	 	Delegation of Duties	 	80
	Section 10.6
	 	Resignation of Administrative Agent	 	80
	Section 10.7
	 	Non-Reliance on Administrative Agent and Other Lenders	 	81
	Section 10.8
	 	No Other Duties, Etc	 	81
	Section 10.9
	 	The L/C Agent and the Fronting Banks	 	81






iii  









 






	 	 	 	 	 
	 
	 	 	 	Page
	ARTICLE XI

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	Section 11.1
	 	Expenses; Indemnity; Damage Waiver	 	81
	Section 11.2
	 	Governing Law; Submission to
Jurisdiction; Waiver of Venue; Service of Process	 	83
	Section 11.3
	 	Waiver of Jury Trial	 	85
	Section 11.4
	 	Notices; Effectiveness; Electronic Communication	 	85
	Section 11.5
	 	Amendments, Waivers, etc.	 	86
	Section 11.6
	 	Successors and Assigns	 	88
	Section 11.7
	 	No Waiver	 	91
	Section 11.8
	 	Survival	 	91
	Section 11.9
	 	Severability	 	92
	Section 11.10
	 	Construction	 	92
	Section 11.11
	 	Confidentiality	 	92
	Section 11.12
	 	Judgment Currency	 	93
	Section 11.13
	 	Counterparts; Integration; Effectiveness	 	93
	Section 11.14
	 	Disclosure of Information	 	94
	Section 11.15
	 	USA PATRIOT Act Notice	 	94
	 
	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 
	THE GUARANTY

	Section 12.1
	 	The Guaranty	 	94
	Section 12.2
	 	Guaranty Unconditional	 	94
	Section 12.3
	 	Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances	 	95
	Section 12.4
	 	Waiver by the Guarantor	 	95
	Section 12.5
	 	Subrogation	 	95
	Section 12.6
	 	Stay of Acceleration	 	96
	Section 12.7
	 	Continuing Guaranty; Assignments	 	96






iv  









 






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Note
	Exhibit B-1

	 	Form of Notice of Borrowing
	Exhibit B-2

	 	Form of Notice of Conversion/Continuation
	Exhibit C-1

	 	Form of Syndicated Letter of Credit
	Exhibit C-2

	 	Form of Participated Letter of Credit
	Exhibit D

	 	Form of Compliance Certificate
	Exhibit E

	 	Form of Assignment and Assumption
	Exhibit F-1

	 	Form of Opinion of Kelley Drye & Warren LLP
	Exhibit F-2

	 	Form of Opinion of Appleby






SCHEDULES




	 	 	 
	Schedule 1.1(a)

	 	Commitments and Notice Addresses
	Schedule 5.4

	 	Licenses
	Schedule 5.7

	 	Subsidiaries
	Schedule 8.2

	 	Indebtedness
	Schedule 8.3

	 	Liens






v  









 






CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of November 27, 2007, is made among ALLIED WORLD ASSURANCE
COMPANY HOLDINGS, LTD, an exempted company incorporated in Bermuda (“Holdings”), ALLIED
WORLD ASSURANCE COMPANY, LTD, an exempted company incorporated in Bermuda (“Allied World,”
and together with Holdings, the “Borrowers”), the Lenders party hereto, BANK OF AMERICA,
N.A., as Syndication Agent for the Lenders and WACHOVIA BANK, NATIONAL ASSOCIATION
(“Wachovia”), as Administrative Agent, L/C Agent and Fronting Bank for the Lenders.



RECITALS




     The Borrowers have requested that the Lenders make available to the Borrowers a revolving
credit facility for the making of revolving loans and for the issuance of standby letters of credit
for the account of the Borrowers in the aggregate principal amount of $400,000,000.



     The Lenders are willing to make available to the Borrowers the credit facilities provided for
herein subject to and on the terms and conditions set forth in this Agreement.



AGREEMENT




     NOW, THEREFORE, in consideration of the mutual provisions, covenants and agreements herein
contained, the parties hereto hereby agree as follows:



ARTICLE I




DEFINITIONS




     Section 1.1 Defined Terms.
For purposes of this Agreement, in addition to the terms defined elsewhere herein, the
following terms shall have the meanings set forth below (such meanings to be equally applicable to
the singular and plural forms thereof):



     “Account Designation Letter” means a letter from any Borrower to the Administrative
Agent, duly completed and signed by an Authorized Officer of such Borrower and in form and
substance reasonably satisfactory to the Administrative Agent, listing any one or more accounts to
which such Borrower may from time to time request the Administrative Agent to forward the proceeds
of any Loans made hereunder.



     “Acquisition” means any transaction or series of related transactions, consummated on
or after the date hereof, by which any Borrower directly, or indirectly through one or more
Subsidiaries, (i) acquires any going business, division thereof or line of business, or all or
substantially all of the assets, of any Person, whether through purchase of assets, amalgamation,
merger or otherwise, or (ii) acquires securities or other ownership interests of any Person having
at least a majority of combined voting power of the then outstanding securities or other ownership
interests of such Person.



     “Additional Lender” has the meaning given to such term in Section 2.19(a).



     

  









 








     “Adjusted LIBOR Rate” means, at any time with respect to any LIBOR Loan, a rate per
annum equal to the LIBOR Rate as in effect at such time plus the Applicable Percentage for LIBOR
Loans as in effect at such time.



     “Administrative Agent” means Wachovia, in its capacity as Administrative Agent
appointed under Section 10.1, and its successors and permitted assigns in such capacity.



     “Administrative Questionnaire” means, with respect to each Lender, the administrative
questionnaire in the form submitted to such Lender by the Administrative 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. Notwithstanding the foregoing, none of the Administrative
Agent, the L/C Agent, any Fronting Bank nor any Lender shall be deemed an “Affiliate” of any
Borrower.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” means this Credit Agreement, as amended, restated, modified or
supplemented from time to time.



     “Annual Statement” means, with respect to any Insurance Subsidiary for any fiscal
year, the annual financial statements of such Insurance Subsidiary as required to be filed with the
Insurance Regulatory Authority of its jurisdiction of domicile and in accordance with the laws of
such jurisdiction, together with all exhibits, schedules, certificates and actuarial opinions
required to be filed or delivered therewith.



     “Applicable Percentage” means, for any day, with respect to (i) the Commitment Fee,
(ii) the applicable margin to be added to the LIBOR Rate for purposes of determining the Adjusted
LIBOR Rate, (iii) the Letter of Credit Fee and (iv) the Utilization Fee, the applicable rate per
annum set forth below under the caption “Commitment Fee”, “Applicable Margin for LIBOR Loans/Letter
of Credit Fee”, and “Utilization Fee”, respectively, in each case based upon the
non-credit-enhanced, senior unsecured long-term debt rating of Holdings (the “Debt Rating”)
by Moody’s or Standard & Poor’s (in each case, except as expressly set forth below, based upon the
higher of the two ratings):



2 








 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Standard &	 	 	 	 	 	Applicable Margin	 	 
	 	 	Poor’s /	 	Commitment	 	for LIBOR Loans/	 	Utilization
	Level	 	Moody’s Rating	 	Fee	 	Letter of Credit Fee	 	Fee
	I
	 	A/ A2 or above	 	 	.06	%	 	 	.25	%	 	 	.05	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	II
	 	 	A-/ A3	 	 	 	.07	%	 	 	.30	%	 	 	.05	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	III
	 	BBB+/Baa1	 	 	.08	%	 	 	.35	%	 	 	.05	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	IV
	 	BBB/Baa2	 	 	.10	%	 	 	.45	%	 	 	.10	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	V
	 	Less than BBB/Baa2	 	 	.125	%	 	 	.55	%	 	 	.10	%






     For purposes of the foregoing, (i) if at any time the difference between the Debt Rating by
Moody’s and Standard & Poor’s is more than one rating grade, the rating one level above the lower
rating will apply, (ii) if either Moody’s or Standard & Poor’s (but not both) shall not have in
effect such a Debt Rating, then the Applicable Percentage shall be based upon the remaining rating,
and (iii) each change in the Applicable Percentage shall be effective as of the date the applicable
rating agency first publicly announces any change in its Debt Rating; provided,
however, that, notwithstanding the foregoing or anything else herein to the contrary, if at
any time an Event of Default shall have occurred and be continuing or neither Moody’s nor Standard
& Poor’s has made available a Debt Rating, at all times from and including the date on which such
Event of Default occurred or such Debt Rating is not available, as the case may be, to the date on
which such Event of Default shall have been cured or waived or either Moody’s or Standard & Poor’s
shall make publicly available such Debt Rating, as the case may be, each Applicable Percentage
shall be determined in accordance with Level V of the above matrix (notwithstanding the actual
level).



     “Approved Fund” means any Fund that is administered or managed by (i) a Lender,
(ii) an Affiliate of a Lender, or (iii) a Person (or an Affiliate of a Person) that administers or
manages a Lender.



     “Assignment and Assumption” means an Assignment and Assumption entered into by a
Lender and an Eligible Assignee (with the consent of any Person whose consent is required by
Section 11.6(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E
or any other form approved by the Administrative Agent.



     “Authorized Officer” means, with respect to any action specified herein to be taken by
or on behalf of any Borrower, any officer of such Borrower duly authorized by resolution of the




3 










 




board of directors or other governing body of such Borrower to take such action on its behalf, and
whose signature and incumbency shall have been certified to the Administrative Agent by the
secretary or an assistant secretary of such Borrower.




     “Availability Period” means the period from and including the Closing Date to the
Commitment Termination Date.



     “Bankruptcy Code” means 11 U.S.C. §§101 et seq., as amended from time to time, and any
successor statute.



     “Bankruptcy Event” means the occurrence of an Event of Default pursuant to Section
9.1(f) or Section 9.1(g).



     “Base Rate” means the higher of (i) the per annum interest rate publicly announced
from time to time by Wachovia in Charlotte, North Carolina, to be its prime rate (which may not
necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the
opening of business on the date of any such change in such prime rate, and (ii) the Federal Funds
Rate plus 0.5% per annum, as adjusted to conform to changes as of the opening of business on the
date of any such change in the Federal Funds Rate.



     “Base Rate Loan” means, at any time, any Loan that bears interest at such time at the
Base Rate.



     “Borrower” means any of Holdings and Allied World, as the context may require, and
“Borrowers” means all of the foregoing.



     “Borrowing” means the incurrence by a Borrower (including as a result of conversions
or continuations of outstanding Loans pursuant to Section 2.10) on a single date of a group of
Loans pursuant to Section 2.2 of a single Type and, in the case of LIBOR Loans, as to which a
single Interest Period is in effect.



     “Borrowing Date” means, with respect to any Borrowing, the date upon which such
Borrowing is made.



     “Business Day” means (i) any day other than a Saturday or Sunday, a legal holiday or a
day on which commercial banks in Charlotte, North Carolina, New York, New York or Bermuda are
authorized or required by law to be closed and (ii) in respect of any determination relevant to a
LIBOR Loan, any such day that is also a day on which trading in Dollar deposits is conducted by
banks in the London interbank Eurodollar market.



     “Capital Lease” means, with respect to any Person, any lease of property (whether
real, personal or mixed) by such Person as lessee that is or is required to be, in accordance with
GAAP, recorded as a capital lease on such Person’s balance sheet.



     “Capital Lease Obligations” means, with respect to any Person, the obligations of such
Person to pay rent or other amounts under any Capital Lease, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with GAAP.



4









 





     “Capital Stock” means (i) with respect to any Person that is a corporation, any and
all shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether
common or preferred) of such corporation and (ii) with respect to any Person that is not a
corporation, any and all partnership, membership, limited liability company or other equity
interests of such Person.



     “Cash Collateral Account” has the meaning given to such term in Section 3.7(a).



     “Cash Equivalents” means (i) securities issued or unconditionally guaranteed or
insured by the United States of America or any agency or instrumentality thereof, backed by the
full faith and credit of the United States of America and maturing within one year from the date of
acquisition, (ii) commercial paper issued by any Person, maturing within 270 days from the date of
acquisition and, at the time of acquisition, having a rating of at least A-1 or the equivalent
thereof by Standard & Poor’s or at least P-1 or the equivalent thereof by Moody’s, (iii) bankers’
acceptances, time deposits and certificates of deposit maturing within 270 days from the date of
issuance and issued by a bank or trust company organized under the laws of the United States of
America or any state thereof (y) that has combined capital and surplus of at least $500,000,000 or
(z) that has (or is a subsidiary of a bank holding company that has) a long-term unsecured debt
rating of at least A or the equivalent thereof by Standard & Poor’s or at least A2 or the
equivalent thereof by Moody’s, (iv) repurchase obligations with a term not exceeding thirty (30)
days with respect to underlying securities of the types described in clause (i) above entered into
with any bank or trust company meeting the qualifications specified in clause (iii) above, and
(v) money market funds at least 95% of the assets of which are continuously invested in securities
of the foregoing types.



     “Change in Law” means the occurrence, after the Closing Date, of any of the following:
(i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any
law, rule, regulation or treaty or in the administration, interpretation or application thereof by
any Governmental Authority or (iii) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.



     “Claims” has the meaning given to such term in the definition of “Environmental
Claims”.



     “Closing Date” has the meaning given to such term in Section 4.1.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any
successor statute, and all rules and regulations from time to time promulgated thereunder.



     “Commitment” means, with respect to any Lender at any time, the commitment of such
Lender to make Loans, to issue and/or participate in Letters of Credit in an aggregate principal
amount at any time outstanding up to the amount set forth opposite such Lender’s name on Schedule
1.1(a) under the caption “Commitment”, or, if such Lender has entered into one or more
Assignment and Assumptions, the amount set forth for such Lender at such time in the Register
maintained by the Administrative Agent pursuant to Section 11.6(c) as such Lender’s
“Commitment,” as such amount may be reduced, increased or terminated at or prior to such
time pursuant to the terms hereof.



5









 





     “Commitment Fee” has the meaning given to such term in Section 2.9(c).



     “Commitment Increase” has the meaning given to such term in Section 2.19(a).



     “Commitment Increase Date” has the meaning given to such term in Section 2.19(c).



     “Commitment Letter” means the commitment letter from the Joint Arrangers to Holdings,
dated October 18, 2007, as amended, modified, restated or supplemented from time to time.



     “Commitment Termination Date” means the Maturity Date or such earlier date of
termination of the Commitments pursuant to Section 2.5 or Section 9.2.



     “Compliance Certificate” means a fully completed and duly executed certificate in the
form of Exhibit D, together with a Covenant Compliance Worksheet.



     “Consolidated Indebtedness” means, at any time, the aggregate (without duplication) of
all Indebtedness of Holdings and its Subsidiaries (whether or not reflected on the balance sheet of
Holdings or any of its Subsidiaries), determined on a consolidated basis in accordance with GAAP,
and for the avoidance of doubt shall not include (i) obligations in respect of undrawn letters of
credit, and (ii) the obligations of Holdings or any of its Subsidiaries under any Hybrid Equity
Securities to the extent that the total book value of such Hybrid Equity Securities does not exceed
15% of Total Capitalization.



     “Consolidated Net Income” means, for any period, Net Income for Holdings and its
Subsidiaries for such period and as reflected on the consolidated financial statements of Holdings
and its Subsidiaries determined on a consolidated basis in accordance with GAAP.



     “Consolidated Net Worth” means, at any time, the consolidated shareholders’ equity of
Holdings and its Subsidiaries determined in accordance with GAAP and as reflected on the
consolidated financial statements of Holdings and its Subsidiaries (i) excluding accumulated other
comprehensive income (loss) (including any such income (loss) arising from adjustments pursuant to
Statement No. 115 of the Financial Accounting Standards Board of the United States of America) and
(ii) excluding any Disqualified Capital Stock.



     “Control” means, with respect to any Person, the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the terms
“Controlled” and “Controlling” have correlative meanings.



     “Covenant Compliance Worksheet” means a fully completed worksheet in the form of
Attachment A to Exhibit D.



     “Credit Documents” means this Agreement, the Notes, the Letter of Credit Documents,
the provisions of the Commitment Letter regarding the payment of fees that expressly survive the
termination thereof (including Annex B thereto), and all other agreements, instruments, documents
and certificates now or hereafter executed and delivered to the Administrative Agent or any Lender
by or on behalf of any Borrower with respect to this Agreement, in each case as amended, modified,
supplemented or restated from time to time.



6









 





     “Credit Exposure” means, with respect to any Lender at any time, the amount of the sum
of (i) the aggregate principal amount of all Loans made by such Lender that are outstanding at such
time and (ii) such Lender’s Letter of Credit Exposure at such time.



     “Credit Extension” means either of the following: (i) a Borrowing of Loans and
(ii) the Issuance of any Letter of Credit.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, Part XIII of the
Companies Act 1981 of Bermuda, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States, Bermuda or other applicable jurisdictions or of
any Insurance Regulatory Authority from time to time in effect and affecting the rights of
creditors generally.



     “Default” means any event or condition that, with the passage of time or giving of
notice, or both, would constitute an Event of Default.



     “Defaulting Lender” means any Lender that (i) has refused to fund, or otherwise
defaulted in the funding of, its Ratable Share of (A) any Borrowing requested and permitted to be
made hereunder, (B) any drawing made on any Syndicated Letter of Credit or (C) any participation
interest in any Participated Letter of Credit in accordance with the terms hereof, (ii) has failed
to pay to the Administrative Agent, any Fronting Bank or any Lender when due an amount owed by such
Lender pursuant to the terms of this Credit Agreement, unless such amount is subject to a good
faith dispute, or (iii) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official, and such refusal has not been
withdrawn or such default has not been cured within three (3) Business Days.



     “Deloitte” means Deloitte & Touche.



     “Disqualified Capital Stock” means, with respect to any Person, any Capital Stock of
such Person that, by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event or otherwise, (i) matures or is
mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking
fund obligation or otherwise, (ii) is redeemable or subject to any mandatory repurchase requirement
at the sole option of the holder thereof, or (iii) is convertible into or exchangeable for (whether
at the option of the issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above at any time on or
prior to the first anniversary of the L/C Maturity Date; provided, however, that
only the portion of Capital Stock that so matures or is mandatorily redeemable, is so redeemable at
the option of the holder thereof, or is so convertible or exchangeable on or prior to such date
shall be deemed to be Disqualified Capital Stock.



     “Dollars” or “$” means dollars of the United States of America.



     “Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an
Approved Fund, and (iv) any other Person (other than a natural person) approved by (y) the
Administrative Agent and the Fronting Banks and (z) unless a Default or Event of Default has
occurred and is



7









 




continuing, Holdings (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible Assignee” shall not include Holdings
or any of its Affiliates or Subsidiaries.




     “Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, written notices of noncompliance or violation, investigations by any Governmental
Authority or proceedings (collectively, “Claims”) relating in any way to any actual or
alleged violation of or liability under any Environmental Law by Holdings or any of its
Subsidiaries in respect of the conduct of their business or the ownership and/or operation of their
respective properties, including (i) any and all Claims by Governmental Authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (ii) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting from any
alleged injury or threat of injury to human health or the environment arising from exposure to, or
the release or threatened release of, any Hazardous Substances.



     “Environmental Laws” means any and all federal, state, local and foreign laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals, rules of common law and
orders of Governmental Authorities, relating to the protection of human health, occupational safety
with respect to exposure to Hazardous Substances, or the environment, now or hereafter in effect,
and in each case as amended from time to time, including requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous Substances.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any successor statute, and all rules and regulations from time to time
promulgated thereunder.



     “ERISA Affiliate” means any Person (including any trade or business, whether or not
incorporated) deemed to be under “common control” with, or a member of the same “controlled
group” as, Holdings or any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m)
or (o) of the Code or Section 4001 of ERISA.



     “ERISA Event” means any of the following with respect to a Plan or Multiemployer Plan,
as applicable: (i) a Reportable Event, (ii) a complete or partial withdrawal by Holdings or any
ERISA Affiliate from a Multiemployer Plan that results in liability under Section 4201 or 4204 of
ERISA, or the receipt by Holdings or any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA, (iii) the distribution by Holdings or
any ERISA Affiliate under Section 4041 or 4041A of ERISA of a notice of intent to terminate any
Plan or the taking of any action to terminate any Plan, (iv) the commencement of proceedings by the
PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by Holdings or any ERISA Affiliate of a notice from any
Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer
Plan, (v) the institution of a proceeding by any fiduciary of any Multiemployer Plan against
Holdings or any ERISA Affiliate to enforce Section 515 of ERISA, which is not dismissed within
thirty (30) days, (vi) the imposition upon Holdings



8









 




or any ERISA Affiliate of any liability under Title IV of ERISA, other than for PBGC premiums
due but not delinquent under Section 4007 of ERISA, or the imposition or threatened imposition of
any Lien upon any assets of Holdings or any ERISA Affiliate as a result of any alleged failure to
comply with the Code or ERISA in respect of any Plan, (vii) the engaging in or otherwise becoming
liable for a nonexempt Prohibited Transaction by Holdings or any ERISA Affiliate, (viii) a
violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Code by any fiduciary of any Plan for which Holdings or any of its
ERISA Affiliates may be directly or indirectly liable or (ix) the adoption of an amendment to any
Plan that, pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA, would result in the
loss of tax-exempt status of the trust of which such Plan is a part if Holdings or an ERISA
Affiliate fails to timely provide security to such Plan in accordance with the provisions of such
sections.




     “Event of Default” has the meaning given to such term in Section 9.1.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, and any successor statute, and all rules and regulations from time to time promulgated
thereunder.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Fronting Bank or any other recipient of any payment to be made by or on account of any obligation
of any Borrower hereunder, (i) any taxes imposed on or measured by its overall net income (however
denominated), and any franchise taxes and other similar taxes imposed on it (in lieu of taxes
imposed on or measured by overall net income), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office is located, (ii) any
branch profits taxes imposed by the United States or any similar taxes imposed by any other
jurisdiction in which any Borrower is located, (iii) in the case of a Foreign Lender (other than an
assignee pursuant to a request by Holdings under Section 2.18(a)), any withholding tax or deduction
of tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign
Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section
2.16(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive additional amounts from
the Borrowers with respect to such withholding tax or deduction of tax pursuant to Section 2.16(a).



     “Federal Funds Rate” means, for any period, a fluctuating per annum interest rate
(rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal for each day
during such period to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding 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 of the quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.



9









 





     “Federal Reserve Board” means the Board of Governors of the Federal Reserve System or
any successor thereto.



     “Final Expiry Date” means the date when the Maturity Date has occurred, all Letters of
Credit have expired or terminated and all Obligations owing hereunder and in the other Credit
Documents have been paid in full.



     “Financial Officer” means, with respect to Holdings, the chief financial officer, vice
president – finance, principal accounting officer or treasurer of Holdings.



     “Financial Strength Rating” means the financial strength rating issued with respect to
any Insurance Subsidiary by A.M. Best Company (or its successor).



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
outside the United States.



     “Foreign Pension Plan” means any plan, fund (including any superannuation fund) or
other similar program established or maintained outside the United States of America by Holdings or
any one or more of its Subsidiaries primarily for the benefit of employees of Holdings or such
Subsidiaries residing outside the United States of America, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan is not subject to
ERISA or the Code.



     “Fronting Bank” means, in its capacity as an issuer of Participated Letters of Credit
and in its capacity as a fronting bank on behalf of any Non-NAIC Lender pursuant to Section 3.1(h),
(i) Wachovia, and (ii) and any other Lender reasonably acceptable to the Administrative Agent which
is requested by Allied World, and which agrees in its sole discretion in writing, to Issue
Participated Letters of Credit or be a fronting bank on behalf of any Non-NAIC Lender pursuant to
Section 3.1(h), in each case together with their respective successors and permitted assigns in
such capacity.



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



     “GAAP” means generally accepted accounting principles in the United States of America,
consistently applied and maintained in effect from time to time (subject to the provisions of
Section 1.2).



     “Governmental Authority” means the government of the United States of America, Bermuda
or any other nation, or of 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 (including any supra-national bodies such as the European Union or the
European Central Bank).



     “Guarantor” means Holdings in its capacity as a Guarantor under Article XII.



10









 





     “Guaranty” means the undertakings by Holdings under Article XII.



     “Guaranty Obligation” means, with respect to any Person, at the time of determination,
any direct or indirect liability of such Person with respect to any Indebtedness, liability or
other obligation (the “primary obligation”) of another Person (the “primary
obligor”), whether or not contingent, (i) to purchase, repurchase or otherwise acquire such
primary obligation or any property constituting direct or indirect security therefor, (ii) to
advance or provide funds (x) for the payment or discharge of any such primary obligation or (y) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial condition of the primary
obligor (including keep well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements), (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of the primary obligor
in respect thereof to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss or failure or inability to perform
in respect thereof; provided, however, that, with respect to Holdings and its
Subsidiaries, the term Guaranty Obligation shall not include endorsements for collection or deposit
in the ordinary course of business. The amount of any Guaranty Obligation of any guaranteeing
Person hereunder shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty Obligation is made
and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms
of the instrument embodying such Guaranty Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in
which case the amount of such Guaranty Obligation shall be such guaranteeing Person’s maximum
reasonably anticipated liability in respect thereof as determined by such guaranteeing Person in
good faith.



     “Hazardous Substance” means any substance or material meeting any one or more of the
following criteria: (i) it is designated as a hazardous waste, hazardous substance, hazardous
material, pollutant, contaminant or toxic substance under any Environmental Law, (ii) it is toxic,
explosive, corrosive, ignitable, infectious, radioactive, mutagenic or otherwise hazardous to human
health or the environment and is or becomes regulated under any Environmental Law, or (iii) it is
or contains, without limiting the foregoing, asbestos, polychlorinated biphenyls, urea formaldehyde
foam insulation, petroleum hydrocarbons, petroleum derived substances or wastes, crude oil, nuclear
fuel, natural gas or synthetic gas.



     “Hedge Agreement” means any interest or foreign currency rate swap, cap, collar,
option, hedge, forward rate or other similar agreement or arrangement designed to protect against
fluctuations in interest rates or currency exchange rates.



     “Historical Statutory Statements” has the meaning given to such term in Section
5.13(b).



     “Holdings” has the meaning given to such term in the introductory paragraph of this
Agreement.



     “Hybrid Equity Securities” shall mean any hybrid preferred securities consisting of
trust preferred securities, deferrable interest subordinated debt securities, mandatory convertible
debt



11









 




or other hybrid securities that are shown on the consolidated financial statements of Holdings
as liabilities and (i) treated as equity by Standard & Poor’s, and (ii) that, by its terms (or by
the terms of any security into which it is convertible for or which it is exchangeable) or upon the
happening of any event or otherwise, does not mature or is not mandatorily redeemable or is not
subject to any mandatory repurchase requirement, at any time on or prior to the date which is six
months after the L/C Maturity Date.




     “Increasing Lender” has the meaning given to such term in Section 2.19(a).



     “Indebtedness” means, with respect to any Person, at the time of determination
(without duplication), (i) all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by notes, bonds, debentures or similar instruments, or upon which interest
payments are customarily made, (iii) the maximum stated or face amount of all surety bonds, letters
of credit and bankers’ acceptances issued or created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (iv) all obligations of such
Person to pay the deferred purchase price of property or services (excluding trade payables and
similar obligations incurred in the ordinary course of business and not more than 60 days past
due), (v) all indebtedness created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person, (vi) all Capital Lease Obligations of
such Person, (vii) all Disqualified Capital Stock issued by such Person, with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase price, (viii) the
principal balance outstanding and owing by such Person under any synthetic lease, tax retention
operating lease or similar off-balance sheet financing product, (ix) all Guaranty Obligations of
such Person with respect to Indebtedness of another Person, (x) the net termination obligations of
such Person under any Hedge Agreements, calculated as of the applicable measurement date as if such
agreement or arrangement were terminated as of such date, and (xi) all indebtedness of the types
referred to in clauses (i) through (x) above (A) of any partnership or unincorporated joint venture
in which such Person is a general partner or joint venturer to the extent such Person is liable
therefor or (B) secured by any Lien on any property or asset owned or held by such Person
regardless of whether or not the indebtedness secured thereby shall have been incurred or assumed
by such Person or is nonrecourse to the credit of such Person, the amount thereof being equal to
the value of the property or assets subject to such Lien; provided that Indebtedness shall
not include obligations with respect to Primary Policies and Reinsurance Agreements which are
entered into in the ordinary course of business.



     “Indemnified Taxes” means Taxes (including, for the avoidance of doubt, Other Taxes)
other than Excluded Taxes.



     “Indemnitee” has the meaning given to such term in Section 11.1(b).



     “Initial Loans” has the meaning given to such term in Section 2.19(d).



     “Insurance Regulatory Authority” means, with respect to any Insurance Subsidiary, the
insurance department or similar Governmental Authority charged with regulating insurance companies
or insurance holding companies, in its jurisdiction of domicile and, to the extent that



12









 




it has regulatory authority over such Insurance Subsidiary, in each other jurisdiction in
which such Insurance Subsidiary conducts business or is licensed to conduct business.




     “Insurance Subsidiary” means each Subsidiary of Holdings the ability of which to pay
dividends is regulated by an Insurance Regulatory Authority or that is otherwise required to be
regulated thereby in accordance with the applicable Requirements of Law of its jurisdiction of
domicile.



     “Interest Period” means, as to each LIBOR Loan, the period commencing on the date of
the Borrowing of such LIBOR Loan (or the date of any continuation of, or conversion into, such
LIBOR Loan), and ending one, two, three or six months (or, if acceptable to all of the Lenders,
nine months) thereafter, as selected by the applicable Borrower in its Notice of Borrowing or
Notice of Conversion/Continuation; provided, that:




     (i) all LIBOR Loans comprising a single Borrowing shall at all times have the same
Interest Period;




     (ii) each successive Interest Period applicable to such LIBOR Loan shall commence on
the day on which the next preceding Interest Period applicable thereto expires;




     (iii) LIBOR Loans may not be outstanding under more than five (5) separate Interest
Periods at any one time (for which purpose Interest Periods shall be deemed to be separate
even if they are coterminous);




     (iv) if any Interest Period otherwise would expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day unless such next
succeeding Business Day falls in another calendar month, in which case such Interest Period
shall expire on the next preceding Business Day;




     (v) no Interest Period shall extend beyond the Maturity Date;




     (vi) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period would otherwise
expire, such Interest Period shall expire on the last Business Day of such calendar month;
and




     (vii) no Borrower may select any Interest Period (and consequently, no LIBOR Loans
shall be made or continued) if a Default or Event of Default shall have occurred and be
continuing at the time of such Notice of Borrowing or Notice of Conversion/Continuation with
respect to any Borrowing.



     “Invested Assets” means cash, Cash Equivalents, short term investments, investments
held for sale and any other assets which are treated as investments under GAAP.



     “Issue” means, with respect to any Letter of Credit, to issue, to amend in a manner
which extends the expiry of, or to renew or increase the Stated Amount of, such Letter of Credit;
and the terms “Issued”, “Issuing” and “Issuance” have corresponding
meanings, provided that the



13









 




term “Issue” shall not include the automatic renewal of a Letter of Credit in accordance with
its terms.




     “Issuing Bank” means, (i) with respect to any Participated Letter of Credit, the
applicable Fronting Bank and (ii) with respect to a Syndicated Letter of Credit, the Lenders (other
than a Non-NAIC Lender) who have issued such Syndicated Letter of Credit (and the applicable
Fronting Bank on behalf of any Non-NAIC Lender).



     “Joint Arrangers” means Banc of America Securities LLC and Wachovia Capital Markets,
LLC.



     “Joint Bookrunners” means Banc of America Securities LLC and Wachovia Capital Markets,
LLC.



     “L/C Advance” has the meaning given to such term in Section 3.2(e).



     “L/C Agent” means Wachovia, and its successors and permitted assigns in such capacity.



     “L/C Disbursement” means (i) with respect to any Participated Letter of Credit, a
payment made by the applicable Fronting Bank pursuant thereto and (ii) with respect to any
Syndicated Letter of Credit, a payment made by a Lender pursuant thereto.



     “L/C Disbursement Date” means, with respect to each L/C Disbursement made under any
Letter of Credit, if the applicable Borrower receives notice from the Administrative Agent of any
L/C Disbursement prior to 12:00 p.m., Charlotte, North Carolina time, on any Business Day, such
Business Day and if such notice is received after 12:00 p.m., Charlotte, North Carolina time, on
any Business Day, the following Business Day.



     “L/C Maturity Date” means the earlier of (a) the first anniversary of the Commitment
Termination Date and (b) the first date after the Commitment Termination Date on which the
aggregate Letter of Credit Exposure is zero.



     “Lender” means each Person signatory hereto as a “Lender” and each other Person that
becomes a “Lender” hereunder pursuant to Section 2.18, Section 2.19, or Section 11.6(b),
having a Commitment (or after the Commitments have terminated, holding outstanding Credit
Exposure).



     “Lending Office” means, with respect to any Lender, the office of such Lender
designated as such in such Lender’s Administrative Questionnaire or in an Assignment and
Assumption, or such other office as may be otherwise designated in writing from time to time by
such Lender to Holdings and the Administrative Agent. A Lender may designate separate Lending
Offices as provided in the foregoing sentence for the purposes of making or maintaining different
Types of Loans, and, with respect to LIBOR Loans, such office may be a domestic or foreign branch
or Affiliate of such Lender.



     “Letter of Credit” means any standby letter of credit Issued hereunder, whether Issued
as a Syndicated Letter of Credit or Participated Letter of Credit, and “Letters of Credit”
means all of the foregoing.



14









 





     “Letter of Credit Documents” means, with respect to any Letter of Credit,
collectively, such Letter of Credit and any application therefor and any other documents attached
thereto.



     “Letter of Credit Exposure” means, at any time for each Lender, such Lender’s Ratable
Share of the amount equal to the sum of (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all outstanding Reimbursement Obligations at
such time.



     “Letter of Credit Fee” has the meaning set forth in Section 2.9(e).



     “Letter of Credit Notice” means a Syndicated Letter of Credit Notice or a Participated
Letter of Credit Notice, as the context may require.



     “LIBOR Loan” means, at any time, any Loan that bears interest at such time at the
applicable Adjusted LIBOR Rate.



     “LIBOR Rate” means, with respect to each LIBOR Loan comprising part of the same
Borrowing for any Interest Period, an interest rate per annum obtained by dividing (i) (y) the rate
of interest (rounded upward, if necessary, to the nearest 1/16 of one percentage point) appearing
on Reuters Screen LIBOR01 (or any successor page) or (z) if no such rate is available, the rate of
interest determined by the Administrative Agent to be the rate or the arithmetic mean of rates
(rounded upward, if necessary, to the nearest 1/16 of one percentage point) at which Dollar
deposits in immediately available funds are offered to first-tier banks in the London interbank
Eurodollar market, in each case under (y) and (z) above at approximately 11:00 a.m., London time,
two (2) Business Days prior to the first day of such Interest Period for a period substantially
equal to such Interest Period, by (ii) (A) if there is any Lender which at the time of
determination is subject to the Reserve Requirement, an amount equal to 1.00 minus the Reserve
Requirement (expressed as a decimal) for such Interest Period or (B) if there is no such Lender at
the time of determination, 1.00. If Reuters no longer reports the LIBOR Rate, the Administrative
Agent may select a reasonable replacement index or replacement page, as the case may be, reasonably
acceptable to Holdings for determination of the rate under clause (i) above.



     “Licenses” has the meaning given to such term in Section 5.4(c).



     “Lien” means any mortgage, pledge, hypothecation, assignment, security interest, lien
(statutory or otherwise), charge or other encumbrance of any nature, whether voluntary or
involuntary, including the interest of any vendor or lessor under any conditional sale agreement,
title retention agreement, Capital Lease or any other lease or arrangement having substantially the
same effect as any of the foregoing.



     “Loans” has the meaning given to such term in Section 2.1.



     “Losses” has the meaning given to such term in Section 11.1(b).



     “Margin Stock” has the meaning given to such term in Regulation U.



     “Material Adverse Effect” means a material adverse effect on (i) the business, assets,
liabilities (actual or contingent) operations or conditions of the Borrowers and their Subsidiaries



15









 




taken as a whole, (ii) the ability of any Borrower to perform its material obligations under
this Agreement or any of the Credit Documents to which it is a party or (iii) the legality,
validity, binding effect or enforceability against any Borrower of this Agreement or any of the
Credit Documents to which it is a party.




     “Material Insurance Subsidiary” means each Insurance Subsidiary that is a Material
Subsidiary.



     “Material Subsidiary” means each of (i) Allied World, (ii) at the relevant time of
determination, any other Subsidiary having (after the elimination of intercompany accounts) (y) in
the case of a non-Insurance Subsidiary, (A) assets constituting at least 10% of the total assets of
Holdings and its Subsidiaries on a consolidated basis, (B) revenues for the four quarters most
recently ended constituting at least 10% of the total revenues of Holdings and its Subsidiaries on
a consolidated basis, or (C) Net Income for the four quarters most recently ended constituting at
least 10% of the Consolidated Net Income of Holdings and its Subsidiaries, in each case determined
in accordance with GAAP as of the date of the GAAP financial statements most recently delivered
under Section 6.1 prior to such time (or, with regard to determinations at any time prior to the
initial delivery of financial statements under Section 6.1, as of the date of the most recent
financial statements referred to in Section 5.13(a)), or (z) in the case of an Insurance
Subsidiary, (A) assets constituting at least 10% of the aggregate assets of all of the Insurance
Subsidiaries of Holdings, or (B) gross written premiums for the four quarters most recently ended
(or, if not readily available, the fiscal year most recently ended) constituting at least 10% of
the aggregate gross written premiums (without duplication) of all of the Insurance Subsidiaries of
Holdings, in each case determined in accordance with SAP as of the date of the statutory financial
statements most recently delivered under Section 6.2 prior to such time (or, with regard to
determinations at any time prior to the initial delivery of financial statements under Section 6.2,
as of the date of the most recent financial statements referred to in Section 5.13(b)) and (iii)
any Subsidiary that has any of the foregoing as a Subsidiary.



     “Maturity Date” means the fifth anniversary of the Closing Date.



     “Moody’s” means Moody’s Investors Service, Inc., and its successors and assigns.



     “Multiemployer Plan” means any “multiemployer plan” within the meaning of Section
4001(a)(3) of ERISA to which Holdings or any ERISA Affiliate makes, is making or is obligated to
make contributions or has made or been obligated to make contributions.



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



     “Net Income” means, with respect to any Person for any period, the net income (or
loss) of such Person for such period determined in accordance with GAAP.



     “Non-NAIC Lender” means a Lender that is not listed on the most current list of banks
approved by the Securities Valuation Officer of the NAIC or is not acting through the branch so
listed.



16









 





     “Notes” means, with respect to any Lender requesting the same, the promissory note of
each Borrower in favor of such Lender evidencing the Loans made by such Lender to such Borrower
pursuant to Section 2.1, in substantially the form of Exhibit A, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements thereof.



     “Notice of Borrowing” has the meaning given to such term in Section 2.2(b).



     “Notice of Conversion/Continuation” has the meaning given to such term in Section
2.10(b).



     “Obligations” means all principal of and interest (including interest accruing after
the filing of a petition or commencement of a case by or with respect to any Borrower seeking
relief under any Debtor Relief Laws, whether or not the claim for such interest is allowed in such
proceeding) on the Loans and Reimbursement Obligations and all fees, expenses, indemnities and
other obligations owing, due or payable at any time by any Borrower to the Administrative Agent,
any Lender, the L/C Agent, any Fronting Bank or any other Person entitled thereto, under this
Agreement or any of the other Credit Documents, in each case whether direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, and whether existing by contract, operation of law or otherwise.



     “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control,
and any successor thereto.



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



     “Participant” has the meaning given to such term in Section 11.6(d).



     “Participated Letter of Credit Notice” has the meaning given to such term in Section
3.2(b).



     “Participated Letters of Credit” means Letters of Credit issued by any Fronting Bank
under Section 3.2(a).



     “Participated Reimbursement Obligation” has the meaning given to such term in Section
3.2(f).



     “PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), as amended from time
to time, and any successor statute, and all rules and regulations from time to time promulgated
thereunder.



     “Payment Office” means the office of the Administrative Agent designated on Schedule
1.1(a) under the heading “Instructions for wire transfers to the Administrative Agent,” or such



17









 




other office as the Administrative Agent may designate in writing to the Lenders and the
Borrowers for such purpose from time to time.




     “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA, and any successor thereto.



     “Percentage Obligations” has the meaning given to such term in the form of Syndicated
Letter of Credit attached hereto.



     “Permitted Liens” means such of the following as to which no enforcement, collection,
execution, levy or foreclosure proceeding shall have been commenced: (i) Liens for taxes,
assessments and governmental charges or levies to the extent not required to be paid under Section
6.6; (ii) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and
repairmen’s Liens and other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 60 days or which are being contested in
good faith and by appropriate proceedings and with respect to which adequate reserves have been
established, and are being maintained, in accordance with GAAP; (iii) pledges or deposits to secure
obligations under workers’ compensation, unemployment, old-age pensions, retirement benefits laws
or similar legislation or to secure public or statutory obligations; (iv) zoning restrictions,
easements, rights of way and other encumbrances on title to real property that do not render title
to the property encumbered thereby unmarketable or materially adversely affect the use of such
property for its present purposes and any exception to coverage described in mortgagee policies of
title insurance, (v) Liens arising by virtue of trust arrangements, withheld balances, or any other
collateral or security arrangements (other than letters of credit) incurred in connection with any
Primary Policies or Reinsurance Agreements in the ordinary course of business or capital support
agreements or any other agreements by the Borrowers in support of the capital of any Insurance
Subsidiary, or guarantees or any other agreements by the Borrowers guaranteeing the obligations of
any Insurance Subsidiary under any Primary Policies or Reinsurance Agreements entered into in the
ordinary course of business; (vi) lease deposits, (vii) Liens arising by virtue of any statutory or
common law provision relating to bankers’ liens, rights of set-off, revocation, refund or
chargeback or other similar rights or remedies existing solely with respect to cash and Cash
Equivalents on deposit pursuant to standard banking arrangements or under the Uniform Commercial
Code or any similar law; (viii) Liens in favor of the Administrative Agent and the Lenders created
by or otherwise existing under or in connection with this Agreement and the other Credit Documents;
(ix) any attachment or judgment Lien not constituting an Event of Default under Section 9.1(h); (x)
Liens that arise in favor of banks under Article 4 of the Uniform Commercial Code or any similar
law on items in collection and the documents relating thereto and proceeds thereof; (xi) Liens
arising from the filing (for notice purposes only) of UCC-1 financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) in respect of true leases otherwise
permitted hereunder; (xii) any leases, subleases, licenses or sublicenses granted by any Borrower
and its Subsidiaries to third parties in the ordinary course of business and not interfering in any
material respect with the business of any Borrower or any of its Subsidiaries, and any interest or
title of a lessor, sublessor, licensor or sublicensor under any lease or license permitted under
this Agreement and (xiii) any Lien existing on any property or asset prior to the acquisition
thereof by any Borrower or any of its Subsidiaries, or existing, on any property or asset of any
Person that becomes a Subsidiary of any Borrower after the date hereof prior to the time such
Person



18









 




becomes a Subsidiary, as the case may be; provided that (x) such Lien is not created
in contemplation of or in connection with such acquisition or such Person becoming such a
Subsidiary, as the case may be, (y) such Lien does not apply to any other property or assets of any
Borrower or such Subsidiary and (z) such Lien secures only those obligations which it secures on
the date of such acquisition or the date such Person becomes such a Subsidiary, as the case may be.




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



     “Plan” means any “employee pension benefit plan” within the meaning of Section 3(2) of
ERISA that is subject to the provisions of Title IV of ERISA (other than a Multiemployer Plan) and
to which Holdings or any ERISA Affiliate may have any liability.



     “Preferred Securities” means, with respect to any Person, any Capital Stock of such
Person that has preferential rights with respect to dividends or redemptions or upon liquidation or
dissolution of such Person over shares of common stock or any Capital Stock of such Person.



     “Primary Policies” means any insurance policies issued by an Insurance Subsidiary.



     “Private Act” means private legislation enacted in Bermuda sought by a Borrower with
the intention that such legislation apply specifically to any Borrower, in whole or in part.



     “Process Agent” has the meaning given to such term in Section 11.2(e).



     “Prohibited Transaction” means any transaction described in (i) Section 406 of ERISA
that is not exempt by reason of Section 408 of ERISA or by reason of a Department of Labor
prohibited transaction individual or class exemption or (ii) Section 4975(c) of the Code that is
not exempt by reason of Section 4975 (c)(2) or 4975(d) of the Code.



     “Ratable Share” of any amount means, at any time for each Lender, a percentage
obtained by dividing such Lender’s Commitment at such time by the Aggregate Commitments then in
effect, provided that, if the Commitment Termination Date has occurred, the Ratable Share
of each Lender shall be determined by dividing such Lender’s Credit Exposure by the aggregate
Credit Exposure of all Lenders then outstanding.



     “Register” has the meaning given to such term in Section 11.6(c).



     “Regulations D, T, U and X” means Regulations D, T, U and X, respectively, of the
Federal Reserve Board, and any successor regulations.



     “Reimbursement Obligations” means the obligation of the applicable Borrower to
reimburse the applicable Issuing Banks for any payment actually made by such Issuing Banks under
any Letter of Credit, together with interest thereon payable as provided herein.



     “Reinsurance Agreement” means any agreement, contract, treaty, policy, certificate or
other arrangement whereby any Insurance Subsidiary agrees to assume from or reinsure an



19









 




insurer or reinsurer all or part of the liability of such insurer or reinsurer under a policy
or policies of insurance issued by such insurer or reinsurer.




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



     “Reportable Event” means, with respect to any Plan, (i) any “reportable event” within
the meaning of Section 4043(c) of ERISA for which the 30-day notice under Section 4043(a) of ERISA
has not been waived by the PBGC (including any failure to meet the minimum funding standard of, or
timely make any required installment under, Section 412 of the Code or Section 302 of ERISA,
regardless of the issuance of any waivers in accordance with Section 412(d) of the Code), (ii) any
such “reportable event” subject to advance notice to the PBGC under Section 4043(b)(3) of ERISA,
(iii) any application for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code, and (iv) a cessation of operations described in Section 4062(e) of ERISA.



     “Required Lenders” means, at any time, the Lenders whose Commitments (or, after the
termination of the Commitments, Credit Exposure) represent at least a majority of the aggregate, at
such time, of the Aggregate Commitments (or, after the termination of the Aggregate Commitments,
the aggregate Credit Exposure); provided that the Commitment of, and the portion of the
outstanding Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders so long as the circumstances causing such
Lender to be a Defaulting Lender have not been cured.



     “Requirement of Law” means, with respect to any Person, the charter, articles or
certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person, and any statute, law, treaty, rule, regulation, order, decree, writ,
injunction or determination of any arbitrator or court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject or otherwise pertaining to any or all of the transactions
contemplated by this Agreement and the other Credit Documents.



     “Reserve Requirement” means, with respect to any Interest Period, the reserve
percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) in effect from time to time during such Interest Period, as provided by
the Federal Reserve Board, applied for determining the maximum reserve requirements (including
basic, supplemental, marginal and emergency reserves) applicable to the Administrative Agent under
Regulation D with respect to “Eurocurrency liabilities” within the meaning of Regulation D, or
under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency
funding.



     “Responsible Officer” means, with respect to any Borrower, the president, the chief
executive officer, the chief financial officer, the vice president-finance, the principal
accounting officer or the treasurer of such Borrower, and any other officer or similar official
thereof responsible for the administration of the obligations of such Borrower in respect of this
Agreement or any other Credit Document.



20









 





     “Sanctioned Country” means a country subject to a sanctions program identified on the
list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/sanctions, or as otherwise published from time to time.




     “Sanctioned Person” means (i) a Person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn, or as otherwise published from time to time, or (ii) (A) an agency of
the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or
(C) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program
administered by OFAC.




     “Secured Facility” means the senior secured letter of credit facility evidenced by the
credit agreement, dated as of the date hereof, by and among the Borrowers, the Lenders named
therein, and Wachovia, as administrative agent.



     “SAP” means, with respect to any Insurance Subsidiary, the statutory accounting
practices prescribed or permitted by the relevant Insurance Regulatory Authority of its
jurisdiction of domicile, consistently applied and maintained, as in effect from time to time,
subject to the provisions of Section 1.2.



     “Standard & Poor’s” means Standard & Poor’s Ratings Services, a division of The McGraw
Hill Companies, Inc. and its successors and assigns.



     “Stated Amount” means, with respect to any Letter of Credit at any time, the aggregate
amount available to be drawn thereunder at such time (regardless of whether any conditions for
drawing could then be met).



     “Subsequent Borrowing” has the meaning given to such term in Section 2.19(d).



     “Subsidiary” means, with respect to any Person, any corporation or other Person of
which more than 50% of the outstanding Capital Stock having ordinary voting power to elect a
majority of the board of directors, board of managers or other governing body of such Person, is at
the time, directly or indirectly, owned or controlled by such Person and one or more of its other
Subsidiaries or a combination thereof (irrespective of whether, at the time, securities of any
other class or classes of any such corporation or other Person shall or might have voting power by
reason of the happening of any contingency). When used without reference to a parent entity, the
term “Subsidiary” shall be deemed to refer to a Subsidiary of Holdings.



     “Syndicated Letter of Credit Notice” has the meaning given to such term in Section
3.1(b).



     “Syndicated Letters of Credit” means Letters of Credit issued under Section 3.1(a).



     “Syndicated Reimbursement Obligation” has the meaning given to such term in Section
3.1(g).



21









 





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



     “Total Capitalization” means, as of any date of determination, the sum of (i)
Consolidated Net Worth as of such date, (ii) Consolidated Indebtedness (but excluding any Hybrid
Equity Securities) as of such date and (iii) the aggregate obligations of the Borrowers and their
Subsidiaries under any Hybrid Equity Securities as of such date.



     “Total Voting Power” means, with respect to any Person, the total number of votes
which may be cast in the election of directors of such Person at any meeting of stockholders of
such Person if all securities entitled to vote in the election of directors of such Person (on a
fully diluted basis, assuming the exercise, conversion or exchange of all rights, warrants, options
and securities exercisable for, exchangeable for or convertible into, such voting securities) were
present and voted at such meeting (other than votes that may be cast only upon the happening of a
contingency).



     “Type” has the meaning given to such term in Section 2.2(a).



     “Utilization Fee” has the meaning given to such term in Section 2.9(d).



     “Unfunded Pension Liability” means, with respect to any Plan, the excess of its
benefit liabilities under Section 4001(a)(16) of ERISA over the current value of its assets,
determined in accordance with the applicable assumptions used for funding under Section 412 of the
Code for the applicable plan year.



     “Unutilized Commitment” means, at any time for each Lender, such Lender’s Commitment
less the sum of (i) the outstanding principal amount of Loans made by such Lender and (ii)
such Lender’s Letter of Credit Exposure.



     “Wachovia” means Wachovia Bank, National Association, and its successors and assigns.



     “Wholly Owned” means, with respect to any Subsidiary of any Person, that 100% of the
outstanding Capital Stock of such Subsidiary is owned, directly or indirectly, by such Person,
except for directors’ qualifying shares.



     Section 1.2 Accounting Terms; GAAP and SAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP
or SAP, as the context requires, each as in effect from time to time; provided that, if
Holdings notifies the Administrative Agent that the Borrowers request an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in GAAP or SAP, as the
case may be, or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrowers 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 SAP, as the case may be, or in the application thereof, then such provision
shall be interpreted on the basis of GAAP or SAP, as the case may



22









 




be, 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.




     Section 1.3 Other Terms; Construction.



     (a) 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, (i) any definition of or reference to any agreement,
instrument or other document shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented, restated or otherwise modified (subject to any
restrictions on such amendments, supplements, restatements or modifications set forth herein or in
any other Credit Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns permitted hereunder, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Credit
Document, shall be construed to refer to such Credit Document in its entirety and not to any
particular provision thereof, (iv) all references in a Credit Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Credit Document in which such references appear, (v) any reference to any law or
regulation herein shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.



     (b) All references herein to the Lenders or any of them shall be deemed to include the
Fronting Banks unless specifically provided otherwise or unless the context otherwise requires and
all references in Article III shall also include the Fronting Banks if the context includes
Participated Letters of Credit or a Non-NAIC Lender unless specifically provided otherwise or
unless the context otherwise requires.



ARTICLE II





AMOUNT AND TERMS OF THE CREDIT




     Section 2.1 Commitments. Upon and subject to the terms and conditions hereof, (i)
each Lender (other than a Non-NAIC Lender) hereby agrees from time to time on any Business Day
during the Availability Period to Issue Letters of Credit as Syndicated Letters of Credit for the
account of any Borrower, subject to the terms and conditions of Article III, (ii) each Fronting
Bank hereby agrees from time to time on any Business Day during the Availability Period to Issue
Letters of Credit as Participated Letters of Credit for the account of any Borrower and each Lender
hereby agrees to purchase participations in the obligations of the Fronting Banks under Letters of
Credit issued as Participated Letters of Credit, subject to the terms and conditions of Article
III, (iii) each Fronting Bank hereby agrees from time to time on any Business Day during the
Availability Period to Issue a Non-NAIC Lender’s Ratable Share of any




23












 




Letter of Credit issued as a Syndicated Letter of Credit (and each such Non-NAIC Lender hereby agrees to purchase participations in the
obligations of such Fronting Bank in the amount of its Ratable Share of such Letter of Credit), and
(iv) each Lender hereby agrees to make loans (each, a “Loan,” and collectively, the
“Loans”) to any Borrower from time to time on any Business Day during the Availability
Period; provided that no Lender shall be obligated to make or participate in any Credit
Extension if, immediately after giving effect thereto, (x) the Credit Exposure of such Lender would
exceed its Commitment at such time, (y) the aggregate Credit Exposure would exceed the Aggregate
Commitments at such time or (z) with respect to the Issuance of Letters of Credit, the applicable
conditions in Section 3.3 are not met. Within the foregoing limits, and
subject to and on the terms and conditions hereof, the Borrowers may borrow, repay and reborrow on
a revolving basis Loans, and may obtain Letters of Credit on a revolving basis to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.




     Section 2.2 Borrowings.



     (a) The Loans shall, at the option of the applicable Borrower and subject to the terms and
conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of
Loan), provided that all Loans comprising the same Borrowing shall, unless otherwise
specifically provided herein, be of the same Type.



     (b) In order to make a Borrowing (other than Borrowings involving continuations or conversions
of outstanding Loans, which shall be made pursuant to Section 2.10), the applicable Borrower will
give the Administrative Agent written notice not later than 11:00 a.m., Charlotte, North Carolina
time, three (3) Business Days prior to each Borrowing of LIBOR Loans and not later than 10:00 a.m.,
Charlotte, North Carolina time, on the same Business Day prior to each Borrowing of Base Rate
Loans. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be
given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial
Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR
Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date,
which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent
will promptly notify each Lender of the proposed Borrowing. Notwithstanding anything to the
contrary contained herein:




     (i) each Borrowing of Base Rate Loans shall be in a principal amount not less than
$1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof, and each
Borrowing of LIBOR Loans shall be in a principal amount not less than $3,000,000 or, if
greater, an integral multiple of $500,000 in excess thereof (or, in each case if less than
the minimum amount, in the amount of the aggregate Unutilized Commitments);




     (ii) if the applicable Borrower shall have failed to designate the Type of Loans in a
Notice of Borrowing, then the Loans shall be made as Base Rate Loans; and




     (iii) if the applicable Borrower shall have failed to specify an Interest Period to be
applicable to any Borrowing of LIBOR Loans, then such Borrower shall be deemed to have
selected an Interest Period of one month.



24









 





     (c) Not later than 1:00 p.m., Charlotte, North Carolina time, on the requested Borrowing Date,
each Lender will make available to the Administrative Agent at the Payment Office an amount, in
Dollars and in immediately available funds, equal to its Ratable Share of such requested Borrowing
as its Loan or Loans. As promptly as practicable, upon satisfaction of the applicable conditions
set forth in Section 4.2 (and, if such Borrowing is the initial Credit
Extension, Section 4.1), the Administrative Agent shall make all funds so
received available to the applicable Borrower in like funds as received by the Administrative Agent
in accordance with Section 2.3(a).



     Section 2.3 Disbursements; Funding Reliance; Domicile of Loans.



     (a) Each Borrower hereby authorizes the Administrative Agent to disburse the proceeds of each
Borrowing it makes in accordance with the terms of any written instructions from any Authorized
Officer of such Borrower; provided that the Administrative Agent shall not be obligated
under any circumstances to forward amounts to any account not listed in an Account Designation
Letter. Any Borrower may at any time deliver to the Administrative Agent an Account Designation
Letter listing any additional accounts or deleting any accounts listed in a previous Account
Designation Letter.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s Ratable Share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section 2.2 and may (but shall not be
so required to), in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the applicable
Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation and (ii) in the case of a payment to be made by such Borrower, the Base Rate. If such
Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of
such interest paid by such Borrower for such period. If such Lender pays its Ratable Share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Borrowing. Any payment by any Borrower shall be without prejudice
to any claim such Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.



     (c) Each Lender may, at its option, make and maintain any Loan at, to or for the account of
any of its Lending Offices, provided that any exercise of such option shall not affect
any obligations of the applicable Borrower to repay such Loan to or for the account of such
Lender or otherwise to make payment in accordance with the terms of this Agreement.



25









 





     (d) The obligations of the Lenders hereunder to make Loans, to make L/C Disbursements in
respect of Syndicated Letters of Credit, to fund participations in Participated Letters of Credit
and to make payments pursuant to Section 11.1 are several and not joint. The
failure of any Lender to make any such Loan, to make any such L/C Disbursement, to fund any such
participation or to make any such payment on any date shall not relieve any other Lender of its
corresponding obligation, if any, hereunder to do so on such date, but no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to make its L/C Disbursement,
purchase its participation or to make any such payment required hereunder.



     Section 2.4 Evidence of Debt; Notes.



     (a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to the applicable Lending Office of such Lender
resulting from the Credit Extensions made by such Lending Office of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lending Office of such
Lender from time to time under this Agreement.



     (b) The
Administrative Agent shall maintain the Register pursuant to
Section 11.6(c), and a subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount of each such Loan, the Type of each such Loan and the Interest
Period applicable thereto, (ii) the date and amount of each applicable L/C Disbursement made under
a Letter of Credit, (iii) the amount of any principal or interest due and payable or to become due
and payable from the applicable Borrower to each Lender hereunder in respect of each such Loan,
(iv) the amount of any Reimbursement Obligation or interest due and payable or to become due and
payable from any Borrower to each Lender and (v) the amount of any sum received by the
Administrative Agent hereunder from the applicable Borrower and each Lender’s Ratable Share
thereof.



     (c) The entries made in the Register and subaccounts maintained pursuant to Section 2.4(b)
(and, if consistent with the entries of the Administrative Agent, the accounts maintained pursuant
to Section 2.4(a)) shall, to the extent permitted by applicable law, be conclusive evidence of the
existence and amounts of the obligations of the applicable Borrower therein recorded absent
manifest error; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such account, such Register or such subaccount, as applicable, or
any error therein, shall not in any manner affect the obligation of each Borrower to repay (with
applicable interest) the Obligations of such Borrower under this Agreement.



     (d) The Loans made by each Lender shall, if requested by the applicable Lender (which request
shall be made to the Administrative Agent), be evidenced by a Note appropriately completed in
substantially the form of Exhibit A, executed by each Borrower and payable to the order of such
Lender. Each Note shall be entitled to all of the benefits of this Agreement and the other Credit
Documents and shall be subject to the provisions hereof and thereof.



     Section 2.5 Termination and Reduction of Commitments.



     (a) The Aggregate Commitments shall be automatically and permanently terminated on the
Commitment Termination Date.



26









 





     (b) At any time and from time to time after the date hereof, upon not less than three (3)
Business Days’ prior written notice to the Administrative Agent, Holdings may terminate in whole or
reduce in part the aggregate Unutilized Commitments; provided that any such partial
reduction shall be in an aggregate amount of not less than $5,000,000 or, if greater, an integral
multiple of $1,000,000 in excess thereof, and applied ratably among the Lenders according to their
respective Commitments. The amount of any termination or reduction made under this Section 2.5(b)
may not thereafter be reinstated.



     (c) All Commitment Fees accrued in respect of the Unutilized Commitments until the effective
date of any termination thereof shall be paid on the effective date of such termination.



     Section 2.6 Mandatory Payments and Prepayments.



     (a) Except to the extent due or paid sooner pursuant to the provisions hereof, each Borrower
shall repay to the Lenders on the Maturity Date the aggregate outstanding principal amount of all
Loans made to such Borrower.



     (b) Subject
to the provisions of Section 3.7(b), in the event that, at any
time, the aggregate Credit Exposure shall exceed the aggregate Commitments at such time (after
giving effect to any concurrent termination or reduction thereof), each Borrower will immediately
prepay the outstanding principal amount of Loans made to it in its pro rata portion (according to
the then outstanding principal amount of Loans made to each Borrower) of the amount of such excess;
provided that, to the extent such excess amount is greater than the aggregate principal
amount of Loans outstanding immediately prior to the application of such prepayment, the amount so
prepaid shall be retained by the Administrative Agent and held in a special collateral account of
such Borrower pursuant to arrangements satisfactory to the Administrative Agent as cover for the
aggregate Letter of Credit Exposure of such Borrower, as more
particularly described in Section 3.7, and thereupon such cash shall be deemed to reduce the aggregate Letter
of Credit Exposure by an equivalent amount.



     Section 2.7 Voluntary Prepayments.



     (a) At any time and from time to time, each Borrower may prepay its Loans, in whole or in
part, together with accrued interest to the date of prepayment, without premium or penalty (except
as provided in clause (iii) below), upon written notice given to the Administrative Agent not later
than 11:00 a.m., Charlotte, North Carolina time, three (3) Business Days prior to each intended
prepayment of LIBOR Loans and one (1) Business Day prior to each intended prepayment of Base Rate
Loans; provided that (i) each partial prepayment shall be in a principal amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof, (ii) no partial prepayment of
LIBOR Loans made pursuant to any single Borrowing shall reduce the aggregate outstanding principal
amount of the remaining LIBOR Loans under such Borrowing to less than $3,000,000 or to any greater
amount not an integral multiple of $500,000 in excess thereof, and (iii) unless made together with
all amounts required under Section 2.17 to be paid as a consequence of such prepayment, a prepayment of a LIBOR Loan may be made only on the last day
of the Interest Period applicable thereto. Each such notice shall specify the proposed date of
such prepayment and the aggregate principal amount and Type of the Loans to be prepaid (and, in the
case of LIBOR Loans, the Interest Period of the Borrowing pursuant to which made), and



27









 







shall be irrevocable and shall bind such Borrower to make such prepayment on the terms specified therein.
Loans prepaid pursuant to this Section 2.7(a) may be reborrowed, subject to the terms and
conditions of this Agreement. In the event the Administrative Agent receives a notice of
prepayment under this Section, the Administrative Agent will give prompt notice thereof to the
Lenders; provided that if such notice has also been furnished to the Lenders, the
Administrative Agent shall have no obligation to notify the Lenders with respect thereto.



     (b) Each prepayment of the Loans made pursuant to this Section 2.7 shall be applied among the
Lenders in accordance with their respective Ratable Shares.



     Section 2.8 Interest.



     (a) Subject to the provisions of Section 2.8(b), each Loan shall bear interest on the
outstanding principal amount thereof, from the date of Borrowing thereof until such principal
amount shall be paid in full, (i) at the Base Rate, during such periods as such Loan is a Base Rate
Loan, and (ii) at the Adjusted LIBOR Rate, as in effect from time to time during such periods as
such Loan is a LIBOR Loan.



     (b) Upon the occurrence and during the continuance of any Default and/or Event of Default
under Section 9.1(a), and (at the election of the Required Lenders) upon the
occurrence and during the continuance of any other Event of Default, all outstanding principal
amounts of the Loans, all Reimbursement Obligations (to the extent not already bearing an
additional 2% per annum pursuant to Section 3.5) and, to the greatest extent
permitted by law, all interest accrued on the Loans and all other accrued and outstanding fees and
other amounts hereunder, shall bear interest at a rate per annum equal to the interest rate
applicable from time to time thereafter to such Loans (whether the Base Rate or the Adjusted LIBOR
Rate) plus 2% (or, in the case of interest, fees and other amounts for which no rate is provided
hereunder, at the Base Rate plus 2%), and, in each case, such default interest shall be payable on
demand. To the greatest extent permitted by law, interest shall continue to accrue after the
filing by or against any Borrower of any petition seeking any relief in bankruptcy or under any
Debtor Relief Law.



     (c) Accrued (and theretofore unpaid) interest shall be payable as follows (other than with
respect to any L/C Disbursement under Section 3.5):




   
  (i) in respect of each Base Rate Loan (including any Base Rate Loan or portion thereof
paid or prepaid pursuant to the provisions of Section 2.6 or Section 2.7, except as provided
hereinbelow), in arrears on the last Business Day of each calendar quarter, beginning
December 31, 2007; provided, that in the event the Loans are repaid or prepaid in
full and the Commitments have been terminated, then accrued interest in respect of all Base
Rate Loans shall be payable together with such repayment or prepayment on the date thereof;



     (ii) in respect of each LIBOR Loan (including any LIBOR Loan or portion thereof paid or
prepaid pursuant to the provisions of Section 2.6 or Section 2.7, except as provided
hereinbelow), in arrears (y) on the last Business Day of the Interest Period applicable
thereto (subject to the provisions of clause (iv) in the definition of “Interest Period”)
and (z) in addition, in the case of an Interest Period of six months or longer, on



28









 







the date occurring three months after the first day of such Interest Period; provided, that
in the event all LIBOR Loans made pursuant to a single Borrowing are repaid or prepaid in
full, then accrued interest in respect of such LIBOR Loans shall be payable together with
such repayment or prepayment on the date thereof; and



     (iii) in respect of any Loan, at maturity (whether pursuant to acceleration or
otherwise) and, after maturity, on demand.



     (d) Nothing contained in this Agreement or in any other Credit Document shall be deemed to
establish or require the payment of interest to any Lender at a rate in excess of the maximum rate
permitted by applicable law. If the amount of interest payable for the account of any Lender on
any interest payment date would exceed the maximum amount permitted by applicable law to be charged
by such Lender, the amount of interest payable for its account on such interest payment date shall
be automatically reduced to such maximum permissible amount. In the event of any such reduction
affecting any Lender, if from time to time thereafter the amount of interest payable for the
account of such Lender on any interest payment date would be less than the maximum amount permitted
by applicable law to be charged by such Lender, then the amount of interest payable for its account
on such subsequent interest payment date shall be automatically increased to such maximum
permissible amount; provided that at no time shall the aggregate amount by which interest
paid for the account of any Lender has been increased pursuant to this sentence exceed the
aggregate amount by which interest paid for its account has theretofore been reduced pursuant to
the previous sentence.



     (e) The Administrative Agent shall promptly notify the applicable Borrower and the Lenders
upon determining the interest rate for each Borrowing of LIBOR Loans after its receipt of the
relevant Notice of Borrowing or Notice of Conversion/Continuation, and upon each change in the Base
Rate; provided, however, that the failure of the Administrative Agent to provide
the applicable Borrower or the Lenders with any such notice shall neither affect any obligations of
such Borrower or the Lenders hereunder nor result in any liability on the part of the
Administrative Agent to any Borrower or any Lender. Each such determination (including each
determination of the Reserve Requirement) shall, absent manifest error, be conclusive and binding
on all parties hereto.



     Section 2.9 Fees. The Borrowers agree to pay:



     (a) To the Joint Arrangers and Wachovia, in its capacity as both a Fronting Bank and the
Administrative Agent, for their own respective accounts, fees in the amounts and at the times
specified in Annex B to the Commitment Letter;



     (b) To each Fronting Bank other than Wachovia, in its capacity as a Fronting Bank, a fronting
fee in respect of each Letter of Credit issued by it under this Agreement at the rate per annum as
separately agreed to between the Borrowers and such Fronting Bank.



     (c) To the Administrative Agent, for the account of each Lender, a commitment fee (the
“Commitment Fee”) for each calendar quarter (or portion thereof) at a per annum rate equal
to the Applicable Percentage in effect for such fee from time to time during such quarter on such
Lender’s Ratable Share of the average daily aggregate Unutilized Commitments, payable in



29









 







arrears (i) on the last Business Day of each calendar quarter, beginning with December 31, 2007 through the
Commitment Termination Date, and (ii) on the Commitment Termination Date. If there is any change
in the Applicable Percentage during any calendar quarter, the actual daily amount shall be computed
and multiplied by the Applicable Percentage separately for each period during such calendar quarter
that such Applicable Percentage was in effect;



     (d) To the Administrative Agent, for the account of each Lender, a utilization fee (the
“Utilization Fee”) payable for each day the aggregate outstanding principal amount of Loans
made by Lenders is greater than 50% of the Aggregate Commitments then in effect (or, if terminated,
in effect immediately prior to such termination), including at any time during which one or more of
the conditions in Section 4.2 is not met. The Utilization Fee shall be
computed at a per annum rate equal to the Applicable Percentage in effect for such fee from time to
time on such Lender’s Ratable Share of the average daily aggregate outstanding principal amount of
the Loans made by the Lenders. The utilization fee shall be due and payable quarterly in arrears
(i) on the last Business Day of each calendar quarter, commencing with December 31, 2007 through
the Final Expiry Date and (ii) on the Final Expiry Date. If there is any change in the Applicable
Percentage during any calendar quarter, the actual daily amount shall be computed and multiplied by
the Applicable Percentage separately for each period during such calendar quarter that such
Applicable Percentage was in effect;



     (e) To the Administrative Agent, for the account of each Lender, a letter of credit fee (the
“Letter of Credit Fee”) for each calendar quarter (or portion thereof) in respect of all
Letters of Credit outstanding during such quarter, at a per annum rate equal to the Applicable
Percentage in effect for such fee from time to time during such quarter, on such Lender’s Ratable
Share of the average daily aggregate Stated Amount of such Letters of Credit. The Letter of Credit
Fee shall be due and payable quarterly in arrears (i) on the last Business Day of each calendar
quarter, commencing with the first such date to occur after the Closing Date through the Final
Expiry Date and (ii) on the Final Expiry Date. If there is any change in the Applicable Percentage
during any quarter, the actual daily amount shall be computed and multiplied by the Applicable
Percentage separately for each period during such quarter that such Applicable Percentage was in
effect; and



     (f) To the L/C Agent and each Fronting Bank, each for its own account, with respect to the
Issuance of each Letter of Credit hereunder, such reasonable fees and expenses as the L/C Agent or
such Fronting Bank, as the case may be, customarily requires in connection with the issuance,
amendment, transfer, negotiation, processing and/or administration of letters of credit.



     Section 2.10 Conversions and Continuations.



     (a) Each Borrower may elect (i) to convert all or a portion of the outstanding principal
amount of any of its Base Rate Loans into LIBOR Loans, or to convert any of its LIBOR Loans the
Interest Periods for which end on the same day into Base Rate Loans, or (ii) upon the expiration of
any Interest Period, to continue all or a portion of the outstanding principal amount of any of its
LIBOR Loans the Interest Periods for which end on the same day for an additional Interest Period,
provided that (x) any such conversion of LIBOR Loans into Base Rate Loans shall be in a
principal amount not less than $1,000,000 or, if greater, an integral multiple of $100,000 in
excess thereof; any such conversion of Base Rate Loans of the same



30









 







Borrowing into, or continuation of LIBOR Loans shall be in a principal amount not less than $3,000,000 or, if greater, an integral
multiple of $500,000 in excess thereof; and no partial conversion of LIBOR Loans of the same
Borrowing shall reduce the outstanding principal amount of such LIBOR Loans to less than $3,000,000
or to any greater amount not an integral multiple of $500,000 in excess thereof, (y) except as
otherwise provided in Section 2.15(f), LIBOR Loans may be converted into Base Rate Loans only on
the last day of the Interest Period applicable thereto (and, in any event, if a LIBOR Loan is
converted into a Base Rate Loan on any day other than the last day of the Interest Period
applicable thereto, the respective Borrower will pay, upon such conversion, all amounts required
under Section 2.17 to be paid as a consequence thereof) and (z) no conversion of Base Rate Loans
into LIBOR Loans or continuation of LIBOR Loans shall be permitted during the continuance of a
Default or Event of Default.



     (b) Each Borrower must give the Administrative Agent written notice not later than 11:00 a.m.,
Charlotte, North Carolina time, three (3) Business Days prior to the intended effective date of any
conversion of Base Rate Loans into, or continuation of, LIBOR Loans and one (1) Business Day prior
to the intended effective date of any conversion of LIBOR Loans into Base Rate Loans. Each such
notice (each, a “Notice of Conversion/Continuation”) shall be irrevocable, shall be given
in the form of Exhibit B-2 and shall specify (x) the date of such conversion or continuation (which
shall be a Business Day), (y) in the case of a conversion into, or a continuation of, LIBOR Loans,
the Interest Period to be applicable thereto, and (z) the aggregate amount and Type of the Loans
being converted or continued. Upon the receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Lender of the proposed conversion or continuation.
In the event that any Borrower shall fail to deliver a Notice of Conversion/Continuation as
provided herein with respect to any of its outstanding LIBOR Loans, such LIBOR Loans shall
automatically be converted to Base Rate Loans upon the expiration of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof). In the event that any Borrower shall have
failed to specify an Interest Period to be applicable to any conversion into, or continuation of,
its LIBOR Loans, then such Borrower shall be deemed to have selected an Interest Period of one
month.



     Section 2.11 Method of Payments; Computations; Apportionment of Payments.



     (a) All payments by the Borrowers hereunder (whether of principal, interest, fees or
reimbursement of L/C Disbursements, or under Sections 2.15, 2.16 or 2.17, or otherwise) shall be
made without setoff, counterclaim or other defense, in Dollars and in immediately available funds
to the Administrative Agent, for the account of the Lenders entitled to such payment
(except as otherwise expressly provided herein as to payments required to be made directly to
any Fronting Bank, the L/C Agent, the Administrative Agent or the Lenders) at the Payment Office,
prior to 2:00 p.m., Charlotte, North Carolina time, on the date payment is due. Any payment made
as required hereinabove, but after 2:00 p.m., Charlotte, North Carolina time, shall be deemed to
have been made on the next succeeding Business Day. If any payment falls due on a day that is not
a Business Day, then such due date shall be extended to the next succeeding Business Day (except
that in the case of LIBOR Loans to which the provisions of clause (iv) in the definition of
“Interest Period” are applicable, such due date shall be the next preceding Business Day), and such
extension of time shall then be included in the computation of payment of interest, fees or other
applicable amounts.



31









 





     (b) The Administrative Agent will distribute to the Lenders like amounts relating to payments
made to the Administrative Agent for the account of the Lenders as follows: (i) if the payment is
received by 12:00 noon, Charlotte, North Carolina time, in immediately available funds, the
Administrative Agent will make available to each relevant Lender on the same date, by wire transfer
of immediately available funds, such Lender’s ratable share of such payment (based on the
percentage that the amount of the relevant payment owing to such Lender bears to the total amount
of such payment owing to all of the relevant Lenders), and (ii) if such payment is received after
12:00 noon, Charlotte, North Carolina time, or in other than immediately available funds, the
Administrative Agent will make available to each such Lender its ratable share of such payment by
wire transfer of immediately available funds on the next succeeding Business Day (or in the case of
uncollected funds, as soon as practicable after collected). If the Administrative Agent shall not
have made a required distribution to the relevant Lenders as required hereinabove after receiving a
payment for the account of such Lenders, the Administrative Agent will pay to each such Lender, on
demand, its ratable share of such payment with interest thereon at the Federal Funds Rate for each
day from the date such amount was required to be disbursed by the Administrative Agent until the
date repaid to such Lender. The Administrative Agent will distribute to the applicable Fronting
Bank like amounts relating to payments made to the Administrative Agent for the account of such
Fronting Bank in the same manner, and subject to the same terms and conditions, as set forth
hereinabove with respect to distributions of amounts to the Lenders.



     (c) Unless the Administrative Agent shall have received notice from the applicable Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the
relevant Lenders or the relevant Fronting Bank hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the relevant
Lenders or the relevant Fronting Bank, as the case may be, the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the relevant Lenders or the relevant
Fronting Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or such Fronting Bank, 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 Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.



     (d) All computations of interest and fees hereunder (including computations of the Reserve
Requirement) shall be made on the basis of a year consisting of (i) in the case of interest on Base
Rate Loans (when such calculation is based on the prime rate), 365/366 days, as the case may be, or
(ii) in all other instances, 360 days; and in each case under (i) and (ii) above, with regard to
the actual number of days (including the first day, but excluding the last day) elapsed.



     Section 2.12 Recovery of Payments.



     (a) Each Borrower agrees that to the extent it makes a payment or payments to or for the
account of the Administrative Agent, any Lender or any Fronting Bank, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any



32









 







Debtor Relief Law (whether as a result of any demand, settlement, litigation or otherwise), then, to the extent of
such payment or repayment, the Obligation intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been received.



     (b) If any amounts distributed by the Administrative Agent to any Lender or any Fronting Bank
are subsequently returned or repaid by the Administrative Agent to the applicable Borrower, its
representative or successor in interest, or any other Person, whether by court order, by settlement
approved by such Lender or such Fronting Bank, or pursuant to applicable Requirements of Law, such
Lender or such Fronting Bank will, promptly upon receipt of notice thereof from the Administrative
Agent, pay the Administrative Agent such amount. If any such amounts are recovered by the
Administrative Agent from such Borrower, its representative or successor in interest or such other
Person, the Administrative Agent will redistribute such amounts to the Lenders or the Fronting
Banks on the same basis as such amounts were originally distributed.



     Section 2.13 Use of Proceeds. The proceeds of the Loans shall be used by the
Borrowers for general corporate purposes not in contravention of any Requirement of Law or of the
Credit Documents, including for the Reimbursement Obligations of the Borrowers hereunder.



     Section 2.14 Pro Rata Treatment.



     (a) All fundings, continuations and conversions of Loans shall be made by the Lenders pro rata
on the basis of their respective Ratable Share or on the basis of their respective outstanding
Loans (in the case of continuations and conversions of Loans pursuant to Section 2.10), as the case
may be from time to time.



     (b) All payments from or on behalf of each Borrower on account of any Obligations of such
Borrower shall be apportioned ratably among the Lenders based upon their respective share, if any,
of the Obligations with respect to which such payment was made.



     (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or other Obligations
hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such Obligations greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in
the Loans and such other Obligations of the other Lenders, or make such other adjustments as shall
be equitable, 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 such other Obligations owing them, 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 Section shall not be construed to apply to
(x) any payment made by any Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) 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 Reimbursement Obligations to any assignee
or participant, other than to any Borrower or any Subsidiary thereof (as to which the



33









 







provisions of this Section 2.14(c) shall apply). Each 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 such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of such Borrower in the amount of such participation. If under any applicable bankruptcy,
insolvency or similar law, any Lender receives a secured claim in lieu of a setoff to which this
Section 2.14(c) applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the Lenders entitled under
this Section 2.14(c) to share in the benefits of any recovery on such secured claim.



     Section 2.15 Increased Costs; Change in Circumstances; Illegality.



     (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender or any Fronting Bank (except the
Reserve Requirement reflected in the LIBOR Rate);




     (ii) subject any Lender or any Fronting Bank to any Taxes of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender or
such Fronting Bank in respect thereof (except for Indemnified Taxes covered by Section 2.16
and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender
or such Fronting Bank); or




     (iii) impose on any Lender or any Fronting Bank or the London interbank market any
other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender
or any Letter of Credit or participation therein (except for Indemnified Taxes covered by
Section 2.16 and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender or such Fronting Bank);



     and the result of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any LIBOR Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or such Fronting Bank of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or
to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or such Fronting Bank hereunder (whether of principal, interest or any other amount), then,
upon request of such Lender or such Fronting Bank, the applicable Borrower will pay to such Lender
or such Fronting Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or such Fronting Bank, as the case may be, for such additional costs incurred or
reduction suffered, provided that nothing in this Section 2.15(a) shall be construed to
entitle any Lender or any Fronting Bank to compensation from any Borrower for any increased costs
if such Lender or such Fronting Bank has been compensated in full from such Borrower for such
increased costs pursuant to another provision in this Agreement, it being understood for the
avoidance of doubt that any Person seeking compensation for increased costs under this Section



34









 







in respect of any Loans made by such Person shall be deemed compensated in full if the applicable
Borrower is paying interest at the Base Rate on such Loan at the time in question.



     (b) If any Lender or any Fronting Bank reasonably determines that any Change in Law affecting
such Lender or such Fronting Bank or any Lending Office of such Lender or such Lender’s or such
Fronting Bank’s holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s or such Fronting Bank’s capital or on the
capital of such Lender’s or such Fronting Bank’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the Lenders or such Fronting Bank,
to a level below that which such Lender or such Fronting Bank or such Lender’s or such Fronting
Bank’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or such Fronting Bank’s policies and the policies of such Lender’s or such Fronting
Bank’s holding company with respect to capital adequacy), then from time to time the applicable
Borrower will pay to such Lender or such Fronting Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or such Fronting Bank or such Lender’s or such Fronting
Bank’s holding company for any such reduction suffered.



     (c) A certificate of a Lender or Fronting Bank setting forth the amount or amounts necessary
to compensate such Lender or such Fronting Bank or its holding company, as the case may be, as
specified in Section 2.15(a) or Section 2.15(b), and the calculation of such amount or amounts in
reasonable detail (along with supporting documentation), and delivered to the applicable Borrower
shall be conclusive absent manifest error. The applicable Borrower shall pay such Lender or such
Fronting Bank, as the case may be, the amount shown as due on any such certificate within 10
Business Days after receipt thereof.



     (d) Failure or delay on the part of any Lender or any Fronting Bank to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s
or such Fronting Bank’s right to demand such compensation, provided that no Borrower shall
be required to compensate a Lender or any Fronting Bank pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than 120 days prior to
the date that such Lender or such Fronting Bank, as the case may be, notifies any such Borrower of
the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such
Fronting Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions
is retroactive, then the 120 days period referred to above shall be extended to include the period
of retroactive effect thereof).



     (e) If, on or prior to the first day of any Interest Period, (y) the Administrative Agent
shall have determined that adequate and reasonable means do not exist for ascertaining the
applicable LIBOR Rate for such Interest Period or (z) the Administrative Agent shall have received
written notice from the Required Lenders of their determination that the rate of interest referred
to in the definition of “LIBOR Rate” upon the basis of which the Adjusted LIBOR Rate for LIBOR
Loans for such Interest Period is to be determined will not adequately and fairly reflect the cost
to such Lenders of making or maintaining LIBOR Loans during such Interest Period, the
Administrative Agent will forthwith so notify Holdings and the Lenders in writing.



35









 







Upon such notice, (i) all then outstanding LIBOR Loans shall automatically, on the expiration date of the
respective Interest Periods applicable thereto (unless then repaid in full), be converted into Base
Rate Loans, (ii) the obligation of the Lenders to make, to convert Base Rate Loans into, or to
continue, LIBOR Loans shall be suspended (including pursuant to the Borrowing to which such
Interest Period applies), and (iii) any Notice of Borrowing or Notice of Conversion/Continuation
given at any time thereafter with respect to LIBOR Loans shall be deemed to be a request for Base
Rate Loans, in each case until the Administrative Agent or the Required Lenders, as the case may
be, shall have determined that the circumstances giving rise to such suspension no longer exist
(and the Required Lenders, if making such determination, shall have so notified the Administrative
Agent), and the Administrative Agent shall have so notified Holdings and the Lenders in writing.
The Administrative Agent and each applicable Lender shall promptly notify Holdings and the
Administrative Agent (as applicable) when such circumstances cease to exist.



     (f) Notwithstanding any other provision in this Agreement, if, at any time after the date
hereof and from time to time, any Lender shall have determined in good faith that any Change in
Law, has or would have the effect of making it unlawful for such Lender to make or to continue to
make or maintain LIBOR Loans, such Lender will forthwith so notify the Administrative Agent and
Holdings in writing. Upon such notice, (i) each of such Lender’s then outstanding LIBOR Loans
shall automatically, on the expiration date of the respective Interest Period applicable thereto
(or, to the extent any such LIBOR Loan may not lawfully be maintained as a LIBOR Loan until such
expiration date, upon such notice) and to the extent not sooner prepaid, be converted into a Base
Rate Loan, (ii) the obligation of such Lender to make, to convert Base Rate Loans into, or to
continue, LIBOR Loans shall be suspended (including pursuant to any Borrowing for which the
Administrative Agent has received a Notice of Borrowing but for which the Borrowing Date has not
arrived), and (iii) any Notice of Borrowing or Notice of Conversion/Continuation given at any time
thereafter with respect to LIBOR Loans shall, as to such Lender, be deemed to be a request for a
Base Rate Loan, in each case until such Lender shall have determined that the circumstances giving
rise to such suspension no longer exist and shall have so notified the Administrative Agent, and
the Administrative Agent shall have so notified Holdings in writing. Each such Lender shall
promptly notify Holdings and the Administrative Agent when such circumstances no longer exist.



     Section 2.16 Taxes.



     (a) Subject to Section 2.16(e), any and all payments by or on account of any obligation of
each Borrower hereunder or under any other Credit Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes, provided that if any Borrower
shall be required by applicable law to deduct or withhold any Indemnified Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making all required
deductions and withholdings (including deductions and withholdings applicable to additional sums
payable under this Section) the Administrative Agent, the applicable Lenders or the applicable
Fronting Bank, as the case may be, receives an amount equal to the sum it would have received had
no such deductions or withholdings been made, (ii) the applicable Borrower shall make such
deductions or withholdings and (iii) the applicable Borrower shall timely pay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with applicable law.



36









 





     (b) Without limiting the provisions of Section 2.16(a), each Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable law.



     (c) Subject to Section 2.16(e), each Borrower shall indemnify the Administrative Agent, each
Lender and each Fronting Bank, within 10 Business Days after written demand therefor, for the full
amount of any Indemnified Taxes with respect to payments by such Borrower under this Agreement or
any other Credit Document (including Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative Agent, such Lender or such Fronting
Bank, as the case may be, and any reasonable and documented out-of-pocket expenses arising
therefrom or with respect thereto, whether or not such Indemnified 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 applicable Borrower by a Lender or any Fronting Bank (with a
copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of
a Lender or any Fronting Bank, shall be conclusive absent manifest error.



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



     (e) Any Lender or any Fronting Bank that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which any Borrower is resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder
or under any other Credit Document shall comply with all necessary procedural formalities and
deliver, or cause to be delivered, to the applicable Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably requested by such Borrower
or the Administrative Agent, 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 of
withholding. In addition, any Lender or any Fronting Bank, if requested by any Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by such Borrower or the Administrative
Agent as will enable such Borrower or the Administrative Agent to determine whether or not such
Lender or such Fronting Bank is subject to backup withholding or information reporting
requirements.



     Without limiting the generality of the foregoing, in the event that any Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to such Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of any Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:



37









 






     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of any Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit any Borrower to
determine the withholding or deduction required to be made.



     (f) If the Administrative Agent, any Lender or any Fronting Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Borrower or with respect to which any Borrower has paid additional amounts, in
either case pursuant to this Section 2.16, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by such
recovery), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such
Fronting Bank, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that such Borrower,
upon the request of the Administrative Agent, such Lender or such Fronting Bank, agrees to repay
the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or such Fronting Bank in
the event the Administrative Agent, such Lender or such Fronting Bank is required to repay such
refund to such Governmental Authority. This Section 2.16(f) shall not be construed to require the
Administrative Agent, any Lender or any Fronting Bank to make available its tax returns (or any other information relating to its Taxes that it
deems confidential) to any Borrower or any other Person.



     (g) Each of the Administrative Agent, the Fronting Banks and each Lender agrees to cooperate
with any reasonable request made by any Borrower in respect of a claim of a refund in respect of
Indemnified Taxes as to which it has been indemnified by such Borrower or with respect to which
such Borrower has paid additional amounts pursuant to this Section 2.16, provided that (i)
such Borrower has agreed in writing to pay all of the Administrative Agent’s or such Fronting
Bank’s or such Lender’s reasonable out-of-pocket costs and expenses relating to such claim, (ii)
the Administrative Agent or such Fronting Bank or such Lender determines, in its good faith
judgment, that it would not be disadvantaged, unduly burdened or prejudiced as a result of such
claim and (iii) such Borrower furnishes, upon request of the Administrative Agent, or such Fronting
Bank or such Lender, an opinion of tax counsel (such opinion and such counsel



38









 







to be reasonably acceptable to such Lender, or such Fronting Bank or the Administrative Agent) to the effect that
such Indemnified Taxes were wrongly or illegally imposed.



     Section 2.17 Compensation. Each Borrower will compensate each Lender upon demand for
all losses, expenses and liabilities (including any loss, expense or liability incurred by reason
of the liquidation or redeployment of deposits or other funds required by such Lender to fund or
maintain such Borrower’s LIBOR Loans) that such Lender may incur or sustain (i) if for any reason
(other than a default by such Lender) a Borrowing or continuation of, or conversion into, a LIBOR
Loan of such Borrower does not occur on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation, (ii) if any repayment, prepayment or conversion of any LIBOR
Loan of such Borrower occurs on a date other than the last day of an Interest Period applicable
thereto (including as a consequence of any assignment made pursuant to Section 2.18(a) or any
acceleration of the maturity of the Loans pursuant to Section 9.2), (iii) if
any prepayment of any LIBOR Loan of such Borrower is not made on any date specified in a notice of
prepayment given by such Borrower or (iv) as a consequence of any other failure by such Borrower to
make any payments with respect to any LIBOR Loan of such Borrower when due hereunder. Calculation
of all amounts payable to a Lender under this Section 2.17 shall be made as though such Lender had
actually funded its relevant LIBOR Loan through the purchase of a Eurodollar deposit bearing
interest at the LIBOR Rate in an amount equal to the amount of such LIBOR Loan, having a maturity
comparable to the relevant Interest Period; provided, however, that each Lender may
fund its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be utilized only
for the calculation of amounts payable under this Section 2.17. The applicable Borrower shall also
pay any customary administrative fees charged by such Lender in connection with the foregoing. A
certificate (which shall be in reasonable detail) showing the bases for the determinations set
forth in this Section 2.17 by any Lender as to any additional amounts payable pursuant to this
Section 2.17 shall be submitted by such Lender to the applicable Borrower either directly or
through the Administrative Agent. Determinations set forth in any such certificate made in good
faith for purposes of this Section 2.17 of any such losses, expenses or liabilities shall be
conclusive absent manifest error.



     Section 2.18 Replacement Lenders.



     (a) Holdings may, at any time at its sole expense and effort, require any Lender (i) that has
requested compensation from any Borrower under Section 2.15(a) or Section 2.15(b) or payments from
any Borrower under Section 2.16, (ii) the obligation of which to make or maintain LIBOR Loans has
been suspended under Section 2.15(f), (iii) that is a Defaulting Lender, (iv) which had NAIC
approval on the date it became a party to this Agreement and ceases to maintain such approval or
otherwise shall lose such approval or (v) that is unable to
Issue a Letter of Credit under Section 3.3(i), in any case upon notice to such Lender and the Administrative Agent,
to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.6), all of its interests,
rights and obligations under this Agreement and the related Credit Documents to an Eligible
Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a
Lender accepts such assignment); provided that:




     (i) the Administrative Agent shall have received the assignment fee specified in Section 11.6(b)(iv);



39









 






     (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, L/C Disbursements and any L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Credit
Documents (including any amounts under Section 2.17) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or any Borrower (in the case of
all other amounts);




     (iii) no assignment pursuant to this Section 2.18 shall be effective until all of the
then outstanding Syndicated Letters of Credit are either amended giving effect to the such
assignment or, if required, returned by each respective beneficiary to the Administrative
Agent and either cancelled and/or exchanged for new or amended Syndicated Letters of Credit
which give effect to such assignment (it being understood that to the extent the respective
beneficiaries whose consent is required do not consent to such assignment, such assignment
cannot occur);




     (iv) in the case of any such assignment resulting from a request for compensation under
Section 2.15(a) or Section 2.15(b) or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or payments thereafter; and




     (v) such assignment does not conflict with applicable Requirements of Law.



     A Lender shall not be required to make any such assignment if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling Holdings to require such assignment
cease to apply.



     (b) If any Lender requests compensation under Section 2.15(a) or Section 2.15(b), or any
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.16, or if any Lender gives a notice pursuant to
Section 2.15(f), then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans or L/C Disbursements hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15(a), Section 2.15(b) or Section 2.16, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 2.15(f), as applicable, and
(ii) in each case would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. Holdings, on behalf of the Borrowers, hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



     Section 2.19 Increase in Commitments.



     (a) Holdings shall have the right, at any time and from time to time after the Closing Date by
written notice to and in consultation with the Administrative Agent, to request an increase in the
Aggregate Commitments (each such requested increase, a “Commitment Increase”), by having
one or more existing Lenders increase their respective Commitments then in effect (each, an
“Increasing Lender”), by adding as a Lender with a new Commitment



40









 







hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination
thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum
amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) immediately
after giving effect to any Commitment Increase, the aggregate of all Commitment Increases effected
after the Closing Date shall not exceed $200,000,000, and (iii)  no existing Lender shall be
obligated to increase its Commitment as a result of any request for a Commitment Increase by
Holdings unless it agrees in its sole discretion to do so.



     (b) Each Additional Lender must qualify as an Eligible Assignee (the approval of which by the
Administrative Agent shall not be unreasonably withheld, conditioned or delayed) and Holdings and
each Additional Lender shall execute a joinder agreement together with all such other documentation
as the Administrative Agent and Holdings may reasonably require, all in form and substance
reasonably satisfactory to the Administrative Agent and Holdings, to evidence the Commitment of
such Additional Lender and its status as a Lender hereunder.



     (c) If the Aggregate Commitments are increased in accordance with this Section, the
Administrative Agent and Holdings shall determine the effective date (the “Commitment Increase
Date,” which shall be a Business Day not less than thirty (30) days prior to the Commitment
Termination Date) and the final amount and allocation of such increase. The Administrative Agent
shall promptly notify Holdings and the Lenders of the final amount and allocation of such increase
and the Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the
Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the
Administrative Agent shall reasonably deem appropriate to effect such Commitment Increase.



     (d) Notwithstanding anything set forth in this Section 2.19 to the contrary, no increase in
the Aggregate Commitments pursuant to this Section 2.19 shall be effective unless:




     (i) The Administrative Agent shall have received the following, each dated the
Commitment Increase Date and in form and substance reasonably satisfactory to the
Administrative Agent:




     (A) as to each Increasing Lender, evidence of its agreement to provide a
portion of the Commitment Increase, and as to each Additional Lender, a duly
executed joinder agreement together with all other documentation required by the
Administrative Agent pursuant to Section 2.19(b);




     (B) an instrument, duly executed by each Borrower, acknowledging and
reaffirming its obligations under this Agreement and the other Credit Documents;




     (C) a certificate of the secretary or an assistant secretary of each Borrower,
certifying to and attaching the resolutions adopted by the board of directors (or
similar governing body) of such Borrower approving or consenting to such Commitment
Increase;




     (D) a certificate of a Financial Officer of Holdings, certifying that (y) as of
the Commitment Increase Date, all representations and warranties of the



41









 







Borrowers contained in this Agreement and the other Credit Documents qualified as to
materiality are true and correct and those not so qualified are true and correct in
all material respects, both immediately before and after giving effect to the
Commitment Increase and any Borrowings or Letters of Credit issued in connection
therewith (except to the extent any such representation or warranty is expressly
stated to have been made as of a specific date, in which case such representation or
warranty is true and correct (if qualified as to materiality) or true and correct in
all material respects (if not so qualified), in each case as of such date), and
(z) no Default or Event of Default has occurred and is continuing, both immediately
before and after giving effect to such Commitment Increase (including any Borrowings
or Letters of Credit issued in connection therewith and the application of the
proceeds thereof); and




     (ii) Each outstanding Syndicated Letter of Credit shall have been amended giving effect
to the Commitment Increase or, if required, returned by each respective beneficiary to the
Administrative Agent and cancelled and/or exchanged for a new or amended Syndicated Letter
of Credit giving effect to the Commitment Increase; and




     (iii) In the case of any Credit Extension in connection with such Commitment Increase,
the conditions precedent set forth in Section 4.2 shall have been
satisfied.


To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable
increase in the aggregate Commitments, on the Commitment Increase Date, (i) all then outstanding
LIBOR Loans (the “Initial Loans”) shall automatically be converted into Base Rate Loans,
(ii) immediately after the effectiveness of the Commitment Increase, the applicable Borrowers
shall, if they so request, convert such Base Rate Loans into LIBOR Loans (the
“Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal
amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of
Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10,
(iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount
equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated after
giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such Lender’s
Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans,
(iv) after the Administrative Agent receives the funds specified in clause (iii) above, the
Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if
positive, between (y) such Lender’s Ratable Share (calculated without giving effect to the
Commitment Increase) of the Initial Loans and (z) such Lender’s Ratable Share (calculated after
giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the
Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their
respective Commitment (calculated after giving effect to the Commitment Increase), (vi) each
applicable Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders
entitled thereto, and (vii) Schedule 1.1(a) shall automatically be amended to reflect the
Commitments of all Lenders after giving effect to the Commitment Increase. The conversion of the
Initial Loans pursuant to clause (i) above shall be subject to indemnification by the applicable
Borrowers pursuant to the provisions of Section 2.17 if the Commitment Increase Date occurs other
than on the last day of the Interest Period relating thereto.




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ARTICLE III




LETTERS OF CREDIT




     Section 3.1 Syndicated Letters of Credit.



     (a) General. Subject to the terms and conditions set forth herein, at the request of
any Borrower at any time and from time to time during the Availability Period, each Lender agrees
to Issue Letters of Credit as Syndicated Letters of Credit for the account of such Borrower. Each
Syndicated Letter of Credit shall be substantially in the form of Exhibit C-1 or in such other form
as may be agreed by the applicable Borrower and the L/C Agent; provided that the L/C Agent
will only agree to reasonable changes to such form requested by any beneficiary or applicable
insurance regulator so long as such changes are not adverse to the interests of the Lenders. If at
the time that any Borrower requests the Issuance of a Syndicated Letter of Credit any Lender is a
Non-NAIC Lender, at the request of such Borrower, the applicable Fronting Bank shall Issue such
Non-NAIC Lender’s Ratable Share of such Syndicated Letter of Credit pursuant to Section 3.1(h).
Absent the prior written consent of each Lender, no Syndicated Letter of Credit may be Issued that
would vary the several and not joint nature of the obligations of the Lenders thereunder as
provided in the next succeeding sentence. Each Syndicated Letter of Credit shall be Issued by all
of the Lenders acting through the L/C Agent, at the time of Issuance as a single multi-bank letter
of credit, but the obligation of each Lender thereunder shall be several and not joint, in the
amount of its Ratable Share of the Stated Amount of such Syndicated Letter of Credit,
provided that the applicable Fronting Bank shall be severally (and not jointly) liable for
its Ratable Share of the Stated Amount of such Syndicated Letter of Credit plus the Ratable Share
of each Non-NAIC Lender for which it is fronting pursuant to Section 3.1(h).



     (b) Notice of Issuance. To request the Issuance of a Syndicated Letter of Credit, the
applicable Borrower shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the L/C Agent) to the L/C Agent (which will
promptly notify the applicable Lenders and provide to such Lenders as soon as practicable a copy of
the Syndicated Letter of Credit) at least 3 Business Days in advance of the requested date of
Issuance (or such shorter period as is acceptable to the L/C Agent, including with respect to any
request for the issuance of a Syndicated Letter of Credit on the Closing Date, subject to approval
by the L/C Agent) a notice in a form reasonably acceptable to the L/C Agent (a “Syndicated
Letter of Credit Notice”) requesting the Issuance of a Syndicated Letter of Credit, or
identifying the Syndicated Letter of Credit to be amended, renewed, extended or increased, as the
case may be, and specifying the date of Issuance (which shall be a Business Day), the date on which
such Syndicated Letter of Credit is to expire (which shall comply with Section 3.1(c)), the amount
of such Syndicated Letter of Credit, the name and address of the beneficiary thereof and the terms
and conditions of (and such other information as shall be necessary to prepare, amend, renew,
extend or increase, as the case may be) such Syndicated Letter of Credit, it being understood and
agreed that Syndicated Letters of Credit may be extended and renewed in accordance with Section
3.1(c). If requested by the L/C Agent, the applicable Borrower shall submit a letter of credit
application on the L/C Agent’s standard form (with such changes as the L/C Agent shall reasonably
deem appropriate) in connection with any request for a Syndicated Letter of Credit. In the event
of any inconsistency between the terms and conditions of this



43









 







Agreement and the terms and conditions of any form of letter of credit application submitted by any Borrower to the L/C Agent
relating to any Syndicated Letter of Credit, the terms and conditions of this Agreement shall
control.



     (c) Expiration of Syndicated Letters of Credit. Each Syndicated Letter of Credit
shall expire at or prior to the earlier of (i) the close of business on the date one year after the
date of the issuance of such Syndicated Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension), or (ii) the seventh (7th) day prior
to the L/C Maturity Date; provided, however, that at the applicable Borrower’s
request a Syndicated Letter of Credit shall provide by its terms, and on terms acceptable to the
L/C Agent, for renewal for successive periods of one year or less (but not beyond the seventh day
prior to the L/C Maturity Date) unless and until the L/C Agent shall have delivered prior written
notice of nonrenewal to the beneficiary of such Syndicated Letter of Credit no later than the time
specified in such Syndicated Letter of Credit (which the L/C Agent shall do only if one or more of
the applicable conditions under Section 4.2 (other than the delivery of a
Letter of Credit Notice) is not then satisfied). The L/C Agent shall promptly provide a copy of
any such notice to the applicable Borrower.



     (d) Obligation of Lenders. The obligation of any Lender under any Syndicated Letter
of Credit shall be several and not joint and shall be in an amount equal to such Lender’s Ratable
Share of the aggregate Stated Amount of such Syndicated Letter of Credit at the time such
Syndicated Letter of Credit is Issued, and each Syndicated Letter of Credit shall expressly so
provide, provided that the applicable Fronting Bank shall be severally (and not jointly
liable) for its Ratable Share of the Stated Amount of such Syndicated Letter of Credit plus the
Ratable Share of each Non-NAIC Lender for which it is fronting pursuant to Section 3.1(h). No
increase of Commitments under Section 2.19 or assignment of Commitments under Section 2.18 or
Section 11.6(b) shall change or affect the liability of any Lender under any
outstanding Syndicated Letter of Credit until such Syndicated Letter of Credit is amended
giving effect to such increase or assignment, as the case may be. The failure of any Lender to
make any L/C Disbursement in respect of any Syndicated Letter of Credit on any date shall not
relieve any other Lender of its corresponding obligation, if any, hereunder to do so on such date,
but no Lender shall be responsible for the failure of any other Lender to make its L/C Disbursement
in respect of any Syndicated Letter of Credit.



     (e) Issuance Administration. Each Syndicated Letter of Credit shall be executed and
delivered by the L/C Agent in the name and on behalf of, and as attorney-in-fact for, each Lender
(other than a Non-NAIC Lender) party to such Syndicated Letter of Credit, and the L/C Agent shall
act under each Syndicated Letter of Credit, and each Syndicated Letter of Credit shall expressly
provide that the L/C Agent shall act, as the agent of each such Lender to (i) execute and deliver
such Syndicated Letter of Credit, (ii) receive drafts, other demands for payment and other
documents presented by the beneficiary under such Syndicated Letter of Credit, (iii) determine
whether such drafts, demands and documents are in compliance with the terms and conditions of such
Syndicated Letter of Credit, (iv) notify such Lender and the applicable Borrower that a valid
drawing has been made and the date that the related L/C Disbursement is to be made and (v) exercise
all rights held by the issuer of a letter of credit under the documents for which such Syndicated
Letter of Credit shall provide credit enhancement (or designate any Person as its representative
for all such purposes under such documents); provided that the L/C



44









 







Agent shall have no obligation or liability for any L/C Disbursement under such Syndicated Letter of Credit, and each
Syndicated Letter of Credit shall expressly so provide. Each Lender hereby irrevocably appoints
and designates the L/C Agent as its attorney-in-fact, acting through any duly authorized officer,
to execute and deliver in the name and on behalf of such Lender each Syndicated Letter of Credit to
be issued by such Lender hereunder and to take such other actions contemplated by this Section
3.1(e). Promptly upon the request of the L/C Agent, each Lender will furnish to the L/C Agent such
powers of attorney or other evidence as any beneficiary of any Syndicated Letter of Credit may
reasonably request in order to demonstrate that the L/C Agent has the power to act as
attorney-in-fact for such Lender to execute and deliver such Syndicated Letter of Credit.



     (f) Disbursement Procedures. The L/C Agent shall, within a reasonable time following
its receipt thereof (and, in any event, within any specific time specified in the text of the
relevant Syndicated Letter of Credit), examine all documents purporting to represent a demand for
payment under any Syndicated Letter of Credit. The L/C Agent shall promptly after such examination
and before such L/C Disbursement notify each applicable Issuing Bank and the applicable Borrower by
telephone (confirmed by telecopy or email) of such demand for payment. With respect to any demand
for payment made under a Syndicated Letter of Credit which the L/C Agent has informed the
applicable Issuing Banks is valid, each such Issuing Bank will make an L/C Disbursement in respect
of such Syndicated Letter of Credit promptly in accordance with the amount of its liability under
such Syndicated Letter of Credit and this Agreement, such L/C Disbursement to be made to the
account of the L/C Agent most recently designated by it for such purpose by notice to the Lenders.
The L/C Agent will make such L/C Disbursement available to the beneficiary of such Syndicated
Letter of Credit by promptly crediting the amounts so received, in the funds so received, to the
account identified by such beneficiary in connection with such demand for such L/C Disbursement.
Promptly following any L/C Disbursement by any Issuing Bank in respect of any Syndicated Letter of Credit, the L/C Agent will notify the
applicable Borrower of such L/C Disbursement.



     (g) Reimbursement. Each Borrower agrees that it shall reimburse the applicable
Issuing Banks in respect of L/C Disbursements made under such Borrower’s Syndicated Letter of
Credit by paying to the Administrative Agent an amount in Dollars equal to the aggregate of the
amount of each such L/C Disbursement no later than 2:00 p.m., Charlotte, North Carolina time, on
the first Business Day after the L/C Disbursement Date with respect to such Syndicated Letter of
Credit (each such amount until paid together with interest thereon payable as provided hereinbelow,
a “Syndicated Reimbursement Obligation”).



     (h) Non-NAIC Lenders. In the event any Lender advises the L/C Agent that such Lender
is a Non-NAIC Lender, the Borrowers, the L/C Agent, such Non-NAIC Lender and the other Lenders,
including the applicable Fronting Bank for such Non-NAIC Lender, hereby agree that (i) such
Non-NAIC Lender shall cease to Issue Syndicated Letters of Credit so long as it is a Non-NAIC
Lender and such Non-NAIC Lenders’ Ratable Share of any Syndicated Letter of Credit will be Issued
by the applicable Fronting Bank for such Non-NAIC Lender, (ii) to the extent Syndicated Letters of
Credit are outstanding, the Borrowers will each use all commercially reasonable efforts to cause
the beneficiaries thereof to execute and deliver an amendment to any Syndicated Letter of Credit of
such Borrower such that the Non-NAIC Lender is removed from such Syndicated Letter of Credit and
the applicable Fronting Bank is added to



45









 







such Syndicated Letter of Credit to honor any draft drawn thereon in an amount equal to the Non-NAIC Lender’s Ratable Share with respect to such Syndicated
Letter of Credit, (iii) immediately upon the issuance or amendment of any Syndicated Letter of
Credit, each Non-NAIC Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, without recourse or warranty, purchase from the applicable Fronting Bank a risk participation
in each such Syndicated Letter of Credit in accordance with Section 3.2(d) in an amount equal to
such Non-NAIC Lender’s Ratable Share of the Stated Amount of such Syndicated Letter of Credit and
(iv) the applicable Borrower shall pay to the applicable Fronting Bank a fronting fee computed on
the risk participation purchased by such Non-NAIC Lender from such Fronting Bank with respect to
such Syndicated Letter of Credit at the rate per annum as separately agreed to between such
Borrower and such Fronting Bank.



     Section 3.2 Participated Letters of Credit.



     (a) General. Subject to the terms and conditions set forth herein, any Borrower may
request any Fronting Bank to Issue, at any time and from time to time during the Availability
Period, and such Fronting Bank hereby agrees to Issue, Participated Letters of Credit for the
account of such Borrower, subject to the terms and conditions of this Section 3.2. Each
Participated Letter of Credit shall be substantially in the form of Exhibit C-2 or in such other
form as may be agreed by the applicable Fronting Bank; provided that the applicable
Fronting Bank and the applicable Borrower will agree to reasonable changes to such form requested
by any beneficiary or applicable insurance regulator so long as such changes are not adverse to the
interests of the Lenders.



     (b) Notice of Issuance. To request the Issuance of a Participated Letter of Credit,
the applicable Borrower shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Fronting Bank) to the
applicable Fronting Bank (which shall promptly notify the Lenders) at least 3 Business Days in
advance of the requested date of Issuance (or such shorter period as is acceptable to the
applicable Fronting Bank, including any request for the Issuance of a Participated Letter of Credit
on the Closing Date, subject to approval by the applicable Fronting Bank) a notice in a form
reasonably acceptable to the applicable Fronting Bank (a “Participated Letter of Credit
Notice”) requesting the Issuance of a Participated Letter of Credit, or identifying the
Participated Letter of Credit to be amended, renewed, extended or increased as the case may be, and
specifying the date of Issuance (which shall be a Business Day), the date on which such
Participated Letter of Credit is to expire (which shall comply with Section 3.2(c)), the amount of
such Participated Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew, extend or increase, as the case may be)
such Participated Letter of Credit, it being understood and agreed that Participated Letters of
Credit may be extended and renewed in accordance with Section 3.2(c). If requested by any Fronting
Bank, the Borrower shall submit a letter of credit application on such Fronting Bank’s standard
form (with such changes as such Fronting Bank shall reasonably deem appropriate) in connection with
any request for a Participated Letter of Credit. 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 submitted by such Borrower to such Fronting Bank relating to any Participated Letter of
Credit, the terms and conditions of this Agreement shall control.



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     (c) Expiration of Participated Letters of Credit. Each Participated Letter of Credit
shall expire at or prior to the earlier of (i) the close of business on the date one year after the
date of the issuance of such Participated Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension), or (ii) the seventh (7th) day prior
to the L/C Maturity Date; provided, however, that at the applicable Borrower’s
request a Participated Letter of Credit shall provide by its terms, and on terms acceptable to the
applicable Fronting Bank, for renewal for successive periods of one year or less (but not beyond
the seventh day prior to the L/C Maturity Date) unless and until the applicable Fronting Bank shall
have delivered prior written notice of nonrenewal to the beneficiary of such Participated Letter of
Credit no later than the time specified in such Participated Letter of Credit (which the applicable
Fronting Bank shall do only if one or more of the applicable
conditions under Section 4.2 (other than the delivery of a Letter of Credit Notice) is not then satisfied).
The Administrative Agent shall promptly provide a copy of any such notice to the applicable
Borrower.



     (d) Participations. By the Issuance of a Participated Letter of Credit (or the
fronting for a Non-NAIC Lender in respect of a Syndicated Letter of Credit pursuant to Section
3.1(h)) by the applicable Fronting Bank and without any further action on the part of the
applicable Fronting Bank or the Lenders, the applicable Fronting Bank hereby grants to each
applicable Lender in respect of such Participated Letter of Credit (or to the Non-NAIC Lender in
respect of such Syndicated Letter of Credit), and each such Lender (or such Non-NAIC Lender) hereby
acquires from the applicable Fronting Bank, participation in such Participated Letter of Credit (or
such Syndicated Letter of Credit) in an amount equal to the amount of such Lender’s Ratable Share
of the Stated Amount of such Participated Letter of Credit (or such Syndicated Letter of Credit)
and the applicable Borrower’s reimbursement obligations with respect thereto. Each Lender or
Non-NAIC Lender acknowledges and agrees that its obligation to acquire participations pursuant to
this paragraph in respect of Participated Letters of Credit (or Syndicated Letters of Credit) is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any such Letter of Credit
or the occurrence and continuance of a Default or Event of Default or reduction or termination of
the Aggregate Commitments. In consideration and in furtherance of the foregoing, each Lender or
Non-NAIC Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for account of the applicable Fronting Bank, the amount of such Lender’s Ratable Share of each L/C
Disbursement made by the applicable Fronting Bank in respect of any Participated Letter of Credit
(or Syndicated Letter of Credit) promptly upon the request of the applicable Fronting Bank at any
time from the time such L/C Disbursement is made until such L/C Disbursement is reimbursed by the
applicable Borrower or at any time after any reimbursement payment is required to be disgorged or
refunded to any Borrower for any reason. Such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Promptly following receipt by the Administrative Agent of any
payment from any Borrower pursuant to Section 3.2(f), the Administrative Agent
shall distribute such payment to the applicable Fronting Bank or, to the extent that any Lenders or
Non-NAIC Lender have made payments pursuant to this paragraph to reimburse the applicable Fronting
Bank, then to such Lenders or Non-NAIC Lender and the applicable Fronting Bank as their interests
may appear. Any payment made by a Lender or Non-NAIC Lender pursuant to this paragraph to
reimburse any Fronting Bank for any L/C Disbursement made by it shall not relieve the applicable
Borrower of its obligation to reimburse such L/C Disbursement. Notwithstanding anything herein to
the contrary, effective upon the increase of the Commitments pursuant to Section 2.19,



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each Lender’s participation in any Participated Letter of Credit (and each Non-NAIC Lender’s
participation in any Syndicated Letter of Credit) outstanding on such date shall be adjusted to
reflect its Ratable Share after giving effect to such increase.



     (e) Disbursement Procedures; Funding of Participations.




     (i) The applicable Fronting Bank shall, within a reasonable time following its receipt
thereof (and, in any event, within any time specified in the text of the relevant
Participated Letters of Credit issued by it), examine all documents purporting to represent
a demand for payment under a Participated Letter of Credit. The applicable Fronting Bank
shall promptly after such examination notify the Administrative Agent and the applicable
Borrower by telephone (confirmed by telecopy or email) of such demand for payment and
whether such Fronting Bank has made or will make a L/C Disbursement thereunder. If such
Borrower shall fail to reimburse the applicable Fronting Bank for such L/C Disbursement on
the date and time specified in Section 3.2(f), the Administrative Agent
shall notify each applicable Lender of the applicable L/C Disbursement, the payment then due
from such Borrower in respect thereof and the amount of such Lender’s Ratable Share thereof.
Each applicable Lender (including any applicable Non-NAIC Lender) shall upon such notice
make funds available in Dollars to the Administrative Agent for the account of the
applicable Fronting Bank at the Payment Office in an amount equal to (i) in the case of a
Participated Letter of Credit, the amount of its Ratable Share of the unpaid L/C
Disbursement and (ii) in the case of a Non-NAIC Lender, its Percentage Obligations of a
Syndicated Letter of Credit being fronted by such Fronting Bank pursuant to Section 3.1(h)
(such amount, its “L/C Advance”) not later than 2:00 p.m. on the Business Day
specified in such notice by the Administrative Agent. No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the applicable Fronting Bank for the amount of any
payment made by such Fronting Bank under such Participated Letter of Credit (or such
Syndicated Letter of Credit in the case of a Non-NAIC Lender), together with interest as
provided herein.




     (ii) If any Lender fails to make available to the Administrative Agent for the account
of the applicable Fronting Bank any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 3.2(e) by the time specified in Section 3.2(e)(i),
the applicable Fronting Bank shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is immediately available
to the applicable Fronting Bank at a rate per annum equal to the Federal Funds Rate from
time to time in effect. A certificate of the applicable Fronting Bank submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (ii) shall be conclusive absent manifest error. Until a Lender funds its L/C Advance
pursuant to this Section 3.2(e) to reimburse the applicable Fronting Bank for any L/C
Disbursement made by it, interest in respect of such Lender’s L/C Advance shall be solely
for the account of the applicable Fronting Bank.




48












 





     (f) Reimbursement. Each Borrower agrees that it shall reimburse the applicable
Fronting Bank in respect of any L/C Disbursement made under such Borrower’s Participated Letter of
Credit by paying to the Administrative Agent an amount in Dollars equal to the amount of such L/C
Disbursement no later than 2:00 p.m., Charlotte, North Carolina time, on the first Business Day
after the L/C Disbursement Date with respect to such Participated Letter of Credit (each such
amount until paid, a “Participated Reimbursement Obligation”).



     (g) Repayment of Participations.




     (i) At any time after the applicable Fronting Bank has made a payment under any
Participated Letter of Credit (or Syndicated Letter of Credit in the case of a Non-NAIC
Lender) and has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 3.2(e), if the Administrative Agent receives for the
account of the applicable Fronting Bank any payment in respect of the related unpaid L/C
Disbursement or interest thereon (whether directly from the applicable Borrower or
otherwise, including proceeds of cash collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Ratable Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s L/C Advance was outstanding) in the same funds as those received
by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the
applicable Fronting Bank pursuant to Section 3.2(e)(i) is required to be returned under any
of the circumstances described in Section 2.12 (including pursuant to any settlement entered
into by the applicable Fronting Bank in its discretion), each Lender shall pay to the
Administrative Agent for the account of the applicable Fronting Bank its Ratable Share
thereof on demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.



     (h) Failure to Make L/C Advances. The failure of any Lender to make the L/C Advance
to be made by it on the date specified in Section 3.2(e) shall not relieve any other Lender of its
obligation hereunder to make its L/C Advance on such date, but no Lender shall be responsible for
the failure of any other Lender to make the L/C Advance to be made by such other Lender on such
date.



     Section 3.3 Conditions Precedent to the Issuance of Letters of Credit. The Issuing Bank shall not
be under any obligation to, and in the case of clauses (ii), (v) and (vi) below shall not, Issue
any Letter of Credit if:




     (i) any order, judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain the Issuance of such Letter of Credit or any
Requirement of Law applicable to such Issuing Bank or any Lender or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over it shall prohibit, or request that it refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon it with respect to
such Letter of Credit any restriction or reserve or capital requirement (for which such



49









 







Issuing Bank or any Lender is not otherwise compensated) not in effect on the Closing Date,
or any unreimbursed loss, cost or expense which was not applicable, in effect or known to it
as of the Closing Date;




     (ii) the limitation on amounts set forth under Section 2.1 will be exceeded,
immediately after giving effect thereto;




     (iii) the L/C Agent or the applicable Fronting Bank, as the case may be, shall have
delivered the written notice of nonrenewal described in Section 3.1(c) and Section 3.2(c)
with respect to such Letter of Credit;




     (iv) the Administrative Agent has received written notice from the applicable Fronting
Bank or the Required Lenders, as the case may be, or any Borrower, on or prior to the
Business Day prior to the requested date of the issuance of such Letter of Credit, that one
or more of the applicable conditions under Section 4.2 is not then satisfied;




     (v) the expiry date of such Letter of Credit would occur more than twelve months after
the date of issuance or last extension unless the Required Lenders have approved such expiry
date;




     (vi) the expiry date of such Letter of Credit is less than seven Business Days prior to
the L/C Maturity Date, unless all of the Lenders have approved such expiry date in writing;




     (vii) such Letter of Credit is not substantially in the form of Exhibit C-1 or Exhibit
C-2 hereto, as the case may be, or is not otherwise in form and substance reasonably
acceptable to the Administrative Agent and the L/C Agent or applicable Fronting Bank, as the
case may be; provided that the Administrative Agent and, in respect of any change to
a Syndicated Letter of Credit, the L/C Agent, or in respect of any change to a Participated
Letter of Credit, the applicable Fronting Bank, can and will agree to reasonable changes to
such form, not adverse to the interests of the Lenders, requested by any beneficiary or
applicable insurance regulator;




     (viii) such Letter of Credit is denominated in a currency other than Dollars; or




     (ix) with respect to the issuance of a Participated Letter of Credit, a default of any
Lender’s obligations to fund under Section 3.2(e) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the applicable Fronting Bank has entered into
satisfactory arrangements with the Borrowers or such Lender to eliminate the applicable
Fronting Bank’s risk with respect to such Lender.



     Section 3.4 Obligations Absolute. The obligations of each Borrower to reimburse with respect to a
L/C Disbursement under any Letter of Credit of such Borrower and of any Lender to reimburse the
applicable Fronting Bank with respect to any L/C Disbursement made by such Fronting Bank under any
Participated Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and any Letter of Credit Document under all
circumstances, including the following circumstances:



50









 






     (i) any lack of validity or enforceability of this Agreement, any other Credit
Document, any Letter of Credit Document or any other agreement or instrument relating
thereto;




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of any Borrower in respect of any Letter of Credit Document or
any other amendment or waiver of or any consent to departure from all or any of the Letter
of Credit Documents;




     (iii) the existence of any claim, set-off, defense or other right that any Borrower may
have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee may be acting), any Issuing
Bank, the Administrative Agent, the L/C Agent, any Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any other Letter of Credit Document or any unrelated transaction;




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




     (v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;
provided, however, that such draft or certificate substantially complies
with the terms of such Letter of Credit;




     (vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
Obligations of any Borrower; or




     (vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, any Borrower, the Guarantor or any other guarantor, other
than as may be expressly set forth in this Agreement.



     None of the Administrative Agent, the L/C Agent, any Fronting Bank or any Lender or any of
their Related Parties shall have any liability or responsibility to any Borrower 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, or 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 their control; provided
that the foregoing shall not be construed to excuse the Administrative Agent, the L/C Agent, any
Issuing Bank or any Lender from liability to a Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived by each Borrower to
the extent permitted by applicable law) suffered by such Borrower that are caused by the gross
negligence or willful misconduct of the Administrative Agent, the L/C Agent, any Issuing Bank



51









 







or
any Lender when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof.



     Section 3.5 Interest. Unless each Borrower reimburses each L/C Disbursement made in respect of
Letters of Credit issued for its account in full on the date such L/C Disbursement is made, the
unpaid amount of the Reimbursement Obligation thereof shall bear interest from the date of each L/C
Disbursement until such amount shall be paid in full at the rate per annum then applicable to Base
Rate Loans (plus an additional 2% per annum, payable on demand, if not reimbursed by the third
Business Day after the date upon which the applicable Borrower receives notice of such L/C
Disbursement).



     Section 3.6 Interest Rate Determination. The Administrative Agent shall give prompt notice to the
applicable Borrower and the applicable Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 3.5.



     Section 3.7 Collateralization of Letters of Credit.



     (a) At any time and from time to time (i) upon the Administrative Agent’s request given in
accordance with Section 9.2 after the occurrence and during the continuance of an Event of Default
and (ii) on the L/C Maturity Date, each Borrower shall deliver to the Administrative Agent as cash
collateral in an amount in cash equal to the aggregate Stated Amount of all Letters of Credit
issued for the account of such Borrower outstanding at such time (whether or not any beneficiary
under any Letter of Credit shall have drawn or be entitled at such time to draw thereunder). The
Administrative Agent shall deposit such cash in a special collateral account of such Borrower
pursuant to arrangements satisfactory to the Administrative Agent (such account, the “Cash
Collateral Account”) for the benefit of the Administrative Agent, the Issuing Banks and the
Lenders.



     (b) At any time and from time to time pursuant to Section 2.6(b), each Borrower shall deliver
to the Administrative Agent such additional amount of cash to the extent required by such Section
as cover for the aggregate Letter of Credit Exposure of such Borrower, and such cash shall be
deposited in such Borrower’s Cash Collateral Account for the benefit of the Administrative Agent,
the Issuing Banks and the Lenders.



     (c) Each Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing
Banks and the Lenders, a Lien upon and security interest in its Cash Collateral Account
and all amounts held therein from time to time as security for the Letter of Credit Exposure
of such Borrower, and for application to its aggregate Reimbursement Obligations as and when the
same shall arise. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account for the benefit of the Fronting Banks and the
Lenders and such Borrower shall have no interest therein except as set forth in Section 3.7(d).
Other than any interest on the investment of such amounts in Cash Equivalents, which investments
shall be made at the direction of such Borrower (unless a Default or Event of Default shall have
occurred and be continuing, in which case the determination as to investments shall be made at the
option and in the discretion of the Administrative Agent), amounts in the Cash Collateral Account
shall not bear interest. Interest and profits, if any, on such investments shall accumulate in
such account.



52









 





     (d) In the event of a drawing, and subsequent payment by any Issuing Bank, under any Letter of
Credit at any time during which any amounts are held in the applicable Cash Collateral Account, the
Administrative Agent will deliver to such Issuing Bank an amount equal to the Reimbursement
Obligation created as a result of such payment (or, if the amounts so held are less than such
Reimbursement Obligation, all of such amounts) to reimburse such Issuing Bank therefor.
Notwithstanding anything in this Agreement to the contrary, to the extent any such drawing is made,
the applicable Borrower’s Reimbursement Obligation shall be deemed to have been satisfied and
discharged to the extent of any such payment from the Cash Collateral Account. Any amounts
remaining in any Cash Collateral Account (including interest and profits) after the expiration of
the Letters of Credit of the applicable Borrower and reimbursement in full of the Issuing Banks for
all of their respective obligations thereunder shall be held by the Administrative Agent, for the
benefit of such Borrower, to be applied against the Obligations of such Borrower in such order and
manner as the Administrative Agent may direct. If any Borrower is required to provide cash
collateral pursuant to Section 2.6(b), such amount (including interest and profits), to the extent
not applied as aforesaid, shall be returned to such Borrower, provided that after giving
effect to such return (i) the aggregate Credit Exposure would not exceed the Aggregate Commitments
at such time and (ii) no Default or Event of Default shall have occurred and be continuing at such
time. If any Borrower is required to provide cash collateral as a result of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to such Borrower within
three (3) Business Days after all Events of Default have been cured or waived.



     Section 3.8 Use of Letters of Credit. The Letters of Credit shall be available and each Borrower
agrees that it shall use its Letters of Credit solely to support its own obligations primarily
under the Primary Policies and Reinsurance Agreements to which it is a party.



ARTICLE IV




CONDITIONS PRECEDENT




     Section 4.1 Conditions Precedent to the Closing Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of
Credit shall not become effective until the date (the “Closing Date”) on which each of the
following conditions is satisfied (or waived in accordance with Section 11.5):



     (a) On the Closing Date, (i) the Borrowers, the Administrative Agent and each Lender shall
have signed a counterpart of this Agreement and shall have delivered (or transmitted by telecopy)
the same to the Administrative Agent at its Payment Office; and (ii) there shall have been
delivered to the Administrative Agent for the account of each Lender that has requested the same
the appropriate Note or Notes, executed by each Borrower, in each case, in the amount, maturity and
as otherwise provided herein;



     (b) On the Closing Date, the Administrative Agent shall have received (i) an opinion, in form
and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative
Agent and each of the Lenders and dated the Closing Date, from Kelley Drye & Warren LLP, special
New York counsel to the Borrowers, which opinion shall cover the matters



53









 







contained in Exhibit F-1,
and (ii) an opinion, in form and substance reasonably satisfactory to the Administrative Agent,
addressed to the Administrative Agent and each of the Lenders and dated the Closing Date, from
Appleby, special Bermuda counsel to the Borrowers, which opinion shall cover the matters
contained
in Exhibit F-2;



     (c) On the Closing Date, the Administrative Agent shall have received a certificate, signed by
a Responsible Officer of each Borrower, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that (i) each of the representations and warranties set forth in
this Agreement and in the other Credit Documents qualified as to materiality are true and correct
and those not so qualified are true and correct in all material respects, each as of the Closing
Date (except to the extent any such representation or warranty is expressly stated to have been
made as of a specific date, in which case such representation or warranty is true and correct (if
qualified as to materiality) or true and correct in all material respects (if not so qualified), in
each case as of such date), (ii) there is no pending or threatened litigation, bankruptcy or other
proceeding in which there is a reasonable likelihood of an adverse determination which could
reasonably be expected to result in a Material Adverse Effect or which seeks to restrain, enjoin or
prevent the closing of the credit facilities provided for herein, (iii) no Default or Event of
Default exists as of the Closing Date and (iv) there has not occurred or become known to the
Administrative Agent since December 31, 2006, a change, occurrence or development that could
reasonably be expected to have a Material Adverse Effect;



     (d) On the Closing Date, the Administrative Agent shall have received a certificate of the
secretary or an assistant secretary of each Borrower, in form and substance reasonably satisfactory
to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of
the articles or certificate of incorporation, certificate of formation or other organizational
document and all amendments thereto of such Borrower, certified as of a recent date by the
Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and
that the same has not been amended since the date of such certification, (ii) that attached thereto
is a true and complete copy of the bylaws or similar governing document of such Borrower, as then
in effect and as in effect at all times from the date on which the resolutions referred to in
clause (iii) below were adopted to and including the date of such certificate, and (iii) that
attached thereto is a true and complete copy of resolutions adopted by the board of
directors (or similar governing body) of such Borrower authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents to which it is a party, and as to the
incumbency and genuineness of the signature of each officer of such Borrower executing this
Agreement or any of the other Credit Documents, and attaching all such copies of the documents
described above;



     (e) All approvals, permits and consents of any Governmental Authorities (including all
relevant Insurance Regulatory Authorities) or other Persons required in connection with the
execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby shall have been obtained (without the imposition of conditions that are not reasonably
acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and
all such approvals, permits, consents and filings shall be in full force and effect and the
Administrative Agent shall have received such copies thereof as it shall have reasonably requested
and such documents and papers where appropriate to be certified by proper corporate or governmental
authorities; all applicable waiting periods shall have expired without any



54









 







adverse action being
taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed before, and no order,
injunction or decree shall have been entered by, any court or other Governmental Authority, in each
case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is
otherwise related to or arises out of, this Agreement, any of the other Credit Documents or the
consummation of the transactions contemplated hereby or thereby, or that could reasonably be
expected to have a Material Adverse Effect;



     (f) Since December 31, 2006, both immediately before and after giving effect to the making of
the initial Credit Extensions (if any), there shall not have occurred or become known to the
Administrative Agent, a change, occurrence or development that could reasonably be expected to have
a Material Adverse Effect;



     (g) On the Closing Date, there shall exist no Default or Event of Default, and all
representations and warranties made by each Borrower contained herein or in any other Credit
Document shall be true and correct in all material respects (it being understood and agreed that
any representation or warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified date);



     (h) The Borrowers shall have paid (i) to the Joint Arrangers, the fees specified in Annex B to
the Commitment Letter to be paid to them on the Closing Date, (ii) to the Administrative Agent, the
initial payment of the annual administrative fee described in Annex B to the Commitment Letter, and
(iii) all other fees and reasonable expenses of the Joint Arrangers, the Administrative Agent and
the Lenders required hereunder or under any other Credit Document to be paid on or prior to the
Closing Date (including legal fees and expenses) pursuant to the Commitment Letter;



     (i) The Administrative Agent shall have received satisfactory confirmation from A.M. Best
Company that the current Financial Strength Rating of each Material Insurance Subsidiary that has
such a rating is “A-” or better;



     (j) Holdings shall have delivered a Compliance Certificate calculated on a pro forma basis as
of September 30, 2007 after giving effect to the making of the initial Credit Extensions (if any);



     (k) The Administrative Agent shall have received an Account Designation Letter from an
Authorized Officer of each Borrower; and



     (l) The Administrative Agent shall have received such other documents, certificates, opinions
and instruments in connection with the transactions contemplated hereby as it shall have reasonably
requested.



     Without limiting the generality of the provisions of Section 10.4, for purposes of determining
compliance with the conditions specified in this Section 4.1, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required hereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.



55









 





     Section 4.2 Conditions Precedent to All Credit Extensions. The obligation of each Lender and each
Fronting Bank to make any Credit Extension shall be subject to the prior or concurrent satisfaction
(in form and substance reasonably satisfactory to the Administrative Agent) of each of the
conditions precedent set forth below:



     (a) The Closing Date shall have occurred;



     (b) The applicable Borrower shall have delivered a Notice of Borrowing in accordance with
Section 2.2(b) or a Letter of Credit Notice in accordance with Section 3.1(b) or Section 3.2(b), as
applicable.



     (c) Each of the representations and warranties of the Borrowers set forth in this Agreement
and in the other Credit Documents qualified as to materiality are true and correct and those not so
qualified are true and correct in all material respects, in each case only as of the date of any
Credit Extension, with the same effect as if made on and as of such date, both immediately before
and after giving effect to Credit Extension (except to the extent any such representation or
warranty is expressly stated to have been made as of a specific date, in which case such
representation or warranty is true and correct (if qualified as to materiality) or true and correct
in all material respects (if not so qualified), in each case only on and as of such specific date);



     (d) With respect to the making of any Credit Extension, the limitation on amounts set forth
under Section 2.1 will not be exceeded immediately after giving effect thereto;



     (e) With respect to the Issuance of any Letter of Credit, the conditions in Section 3.3 have
been satisfied; and



     (f) No Default or Event of Default shall have occurred and be continuing on such date, both
immediately before and after giving effect to such Credit Extension.



     Each giving of a Notice of Borrowing or a Letter of Credit Notice, and the consummation of
each Credit Extension, shall be deemed to constitute a representation and warranty by the
applicable Borrower that the statements contained in Section 4.2(c) through Section 4.2(f) above
are true, both as of the date of such notice or request and as of the date such Credit Extension is
made.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     To induce the Administrative Agent, the L/C Agent, the Fronting Banks and the Lenders to enter
into this Agreement and to induce the Lenders to extend the credit contemplated hereby and the
Issuing Banks to issue Letters of Credit, each of the Borrowers (solely as to itself and its
Subsidiaries) represents and warrants to the Administrative Agent, the L/C Agent, the Fronting
Banks and the Lenders as follows:



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     Section 5.1 Organization and Power. Each such Borrower and its Subsidiaries (i) is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the full corporate power and authority to own and hold its property and to
engage in its business as presently conducted, and (iii) is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the nature of its business
or the ownership of its properties requires it to be so qualified, except where the failure to be
so qualified could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



     Section 5.2 Authorization; Enforceability. Such Borrower has the full corporate power and
authority to execute, deliver and perform its obligations under the Credit Documents to which it is
or will be a party and has taken all necessary corporate action to execute, deliver and perform its
obligations under each of the Credit Documents to which it is or will be a party, and has, or on
the Closing Date (or any later date of execution and delivery) will have, validly executed and
delivered each of the Credit Documents to which it is or will be a party. This Agreement
constitutes, and each of the other Credit Documents upon execution and delivery by each Borrower
that is a party thereto will constitute, the legal, valid and binding obligation of each Borrower
that is a party hereto or thereto, enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally or by
general equitable principles regardless of whether enforceability is considered in a proceeding in
equity or at law.



     Section 5.3 No Violation. The execution, delivery and performance by each Borrower of this
Agreement and each of the other Credit Documents to which it is or will be a party, and compliance
by it with the terms hereof and thereof, do not and will not (i) violate any provision of its
certificate of incorporation or bylaws (or other similar organizational document or governing
document), (ii)
contravene any other Requirement of Law applicable to it, (iii) conflict with, result in a
breach of or constitute (with notice, lapse of time or both) a default under any material
indenture, agreement or other instrument to which it is a party, by which it or any of its
properties is bound or to which it is subject, or (iv) result in or require the creation or
imposition of any Lien upon any of its properties or assets, other than, in the case of clauses
(ii), (iii) and (iv), such contraventions, conflicts, breaches, defaults and creation or imposition
of Liens that could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



     Section 5.4 Governmental and Third-Party Authorization; Permits.



     (a) Except as set forth on Schedule 5.4, no consent, approval, authorization or other action
by, notice to, or registration or filing with, any Governmental Authority or other Person is or
will be required as a condition to or otherwise in connection with the due execution, delivery and
performance by such Borrower of this Agreement or any of the other Credit Documents to which it is
or will be a party or the legality, validity or enforceability hereof or thereof, other than such
consents, approvals, authorizations and other actions which the failure to obtain could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



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     (b) Each such Borrower and its Subsidiaries has, and is in good standing with respect to, all
governmental approvals, licenses, permits and authorizations necessary to conduct its business as
presently conducted and to own or lease and operate its properties, except for those the failure to
obtain which could not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.



     (c) Schedule 5.4 lists with respect to each Insurance Subsidiary of such Borrower, as of the
Closing Date, all of the jurisdictions in which such Insurance Subsidiary holds licenses (including
licenses or certificates of authority from relevant Insurance Regulatory Authorities), permits or
authorizations to transact insurance and reinsurance business (collectively, the
“Licenses”), and indicates the type or types of insurance in which each such Insurance
Subsidiary is permitted to be engaged with respect to each License therein listed. (i) No such
License is the subject of a proceeding for suspension, revocation or limitation or any similar
proceedings, and (ii) no such suspension, revocation or limitation is threatened in writing by any
relevant Insurance Regulatory Authority, that, in each instance under (i) and (ii) above, could
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each
Insurance Subsidiary has obtained and maintains in full force and effect all licenses and permits
from all Governmental Authorities and Insurance Regulatory Authorities necessary to operate in the
jurisdictions in which it operates, in each case other than such licenses and permits the failure
to obtain or maintain, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.



     Section 5.5 Litigation. There are no actions, investigations, suits or proceedings pending or, to
the knowledge of the Borrowers, threatened, at law or in equity before any Governmental Authority
or in arbitration, against or affecting any Borrower, any of their respective Subsidiaries or any
of their respective properties (i) in which there is a reasonable likelihood of an adverse
determination
which could reasonably be expected to result in a Material Adverse Effect, or (ii) with
respect to this Agreement or any of the other Credit Documents to which such Borrower is a party.



     Section 5.6 Taxes. Each of such Borrower and its Subsidiaries has timely filed all federal,
state, local and foreign tax returns and reports required to be filed by it and has paid all Taxes,
assessments, fees and other charges levied upon it or upon its properties that are shown thereon as
due and payable, other than (i) those Taxes, assessments, fees and other charges that are being
contested in good faith and by proper proceedings and for which adequate reserves have been
established in accordance with GAAP, or (ii) where the failure to file such returns and reports or
the failure to pay such Taxes, assessments, fees and other charges could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Such returns are true,
correct and complete in all material respects. There is no ongoing audit or examination or other
investigation by any Governmental Authority of the tax liability of such Borrower or any of its
Subsidiaries the outcome of which could reasonably be expected to have a Material Adverse Effect.
There is no unresolved claim by any Governmental Authority concerning the tax liability of such
Borrower or any of its Subsidiaries for any period for which tax returns have been or were required
to have been filed, other than claims for which adequate reserves have been established in
accordance with GAAP or that could not reasonably be expected to have a Material Adverse Effect.



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     Section 5.7 Subsidiaries.



     (a) Set forth on Schedule 5.7 is a complete and accurate list of all of the Subsidiaries of
Holdings as of the Closing Date, together with, for each such Subsidiary, and, as to each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding
direct ownership interests in such Subsidiary and (iii) the percentage of ownership of such
Subsidiary represented by such ownership interests. Each of Holdings and its Subsidiaries owns,
free and clear of Liens, and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Schedule 5.7.



     (b) No Subsidiary is a party to any agreement or instrument or otherwise subject to any
restriction or encumbrance that restricts or limits its ability to make dividend payments or other
distributions in respect of its Capital Stock, to repay Indebtedness owed to any Borrower or any
other Subsidiary, to make loans or advances to any Borrower or any other Subsidiary, or to transfer
any of its assets or properties to any Borrower or any other Subsidiary, in each case other than
such restrictions or encumbrances existing under or by reason of the Credit Documents or applicable
Requirements of Law.



     Section 5.8 Full Disclosure. All factual information heretofore, contemporaneously or hereafter
furnished in writing to the Administrative Agent, the Joint Arrangers or any Lender by or on behalf
of any Borrower for purposes of or in connection with this Agreement or any of the other Credit
Documents is or will be true and accurate in all material respects on the date as of which such
information is dated or certified (or, if such information has been updated, amended or
supplemented, on the date as of
which any such update, amendment or supplement is dated or certified) and not made incomplete by
omitting to state a material fact necessary to make the statements contained herein and therein, in
light of the circumstances under which such information was provided, not misleading. As of the
Closing Date, there is no fact known to any Borrower that has, or could reasonably be expected to
have, a Material Adverse Effect, which fact has not been set forth herein, in the financial
statements of Holdings and its Subsidiaries furnished to the Administrative Agent and/or the
Lenders, or in any certificate, opinion or other written statement made or furnished by the
Borrowers to the Administrative Agent and/or the Lenders.



     Section 5.9 Absence of Default. No Default or Event of Default has occurred and is continuing or
would result from the consummation of any transaction contemplated by this Agreement or any other
Credit Document.



     Section 5.10 Ownership of Property; Liens. Each such Borrower and its Subsidiaries has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of such Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted
under Section 8.3.



     Section 5.11 Margin Regulations. Neither such Borrower nor any of its Subsidiaries is engaged
principally or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock. No proceeds of the Loans will be used,



59









 







directly or
indirectly, to purchase or carry any Margin Stock, to extend credit for such purpose or for any
other purpose that could violate or be inconsistent with Regulations T, U or X or Section 7 of the
Exchange Act.



     Section 5.12 No Material Adverse Effect. There has been no Material Adverse Effect since December
31, 2006, and there exists no change, occurrence or development, either individually or in the
aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.



     Section 5.13 Financial Matters.



     (a) Holdings has heretofore furnished to the Administrative Agent copies of (i) the audited
consolidated balance sheets of Holdings and its Subsidiaries as of December 31, 2006, 2005 and 2004
and the related statements of income, stockholders’ equity and cash flows for the fiscal years or
period then ended, together with the opinion of Deloitte thereon, and (ii) the unaudited
consolidated balance sheet of Holdings and its Subsidiaries as of September 30, 2007, and the
related statements of income, stockholders’ equity and cash flows for the nine-month period then
ended. Such consolidated financial statements have been prepared in accordance with GAAP (subject,
with respect to the unaudited financial statements, to the absence of notes
required by GAAP and to normal year end adjustments) and present fairly, in all material
respects, the financial position of Holdings and its Subsidiaries, and the results of their
operations and their cash flows, as of the dates and for the periods indicated. Except for
liabilities and obligations disclosed or provided for in the most recent financial statements
referred to above and the notes thereto or the most recent financial statements and the notes
thereto delivered pursuant to Section 6.1, as of the date of such financial statements, none of the
Borrowers had any material liability or obligation that, in accordance with GAAP, would have been
required to have been disclosed or provided for in such financial statements or the notes thereto.



     (b) Holdings has heretofore furnished to the Administrative Agent copies of (i) the Annual
Statements of each Material Insurance Subsidiary as of December 31, 2006 and 2005 and for the
fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority,
(collectively, the “Historical Statutory Statements”). The Historical Statutory Statements
(including the provisions made therein for investments and the valuation thereof, reserves, policy
and contract claims and statutory liabilities) have been prepared, in all material respects, in
accordance with SAP (except as may be reflected in the notes thereto), were in all material
respects, in compliance with applicable Requirements of Law when filed and present fairly in all
material respects the financial condition of the respective Material Insurance Subsidiaries covered
thereby as of the respective dates thereof and the results of operations, changes in capital and
surplus and cash flows of the respective Material Insurance Subsidiaries covered thereby for the
respective periods then ended. Except for liabilities and obligations disclosed or provided for in
the Historical Statutory Statements (including reserves, policy and contract claims and statutory
liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical
Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether
absolute, contingent or otherwise and whether or not due) that, in accordance with SAP, would have
been required to have been disclosed or provided for in such Historical Statutory Statements.



60









 





     (c) Neither (i) the board of directors of any Borrower, a committee thereof or an authorized
officer of any Borrower has concluded that any financial statement previously furnished to the
Administrative Agent or any Lender should no longer be relied upon because of an error, nor (ii)
has any Borrower been advised by its auditors that a previously issued audit report or interim
review cannot be relied upon.



     Section 5.14 ERISA



     (a) Each such Borrower and its ERISA Affiliates is in compliance in all respects with the
applicable provisions of ERISA, and each Plan is and has been administered in compliance in all
respects with all applicable Requirements of Law, including the applicable provisions of ERISA and
the Code, except for any noncompliance that could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. No ERISA Event (i) has occurred within the
five-year period prior to the Closing Date and is continuing, or (ii) to the knowledge of any
Borrower, is reasonably expected to occur with respect to any Plan, in either case that could
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. No
Plan has any Unfunded Pension Liability as of the date of the most recent actuarial report
applicable thereto, and no such Borrower or any of its ERISA Affiliates has
engaged in a transaction that would be subject to Section 4069 or 4212(c) of ERISA, in either
instance where the same could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.



     (b) No such Borrower nor any of its ERISA Affiliates has had a complete or partial withdrawal
from any Multiemployer Plan for which there exists unsatisfied withdrawal liability that could
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and no
such Borrower nor any of its ERISA Affiliates would become subject to any withdrawal liability
under ERISA that could reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect if such Borrower or any such ERISA Affiliate were to withdraw completely from all
Multiemployer Plans as of the most recent valuation date for the Multiemployer Plans. To the
knowledge of such Borrower, no Multiemployer Plan is in “reorganization” or is “insolvent” within
the meaning of such terms under ERISA.



     (c) Each Foreign Pension Plan has been maintained in compliance with its terms and with the
requirements of any and all applicable Requirements of Law and has been maintained, where required,
in good standing with applicable regulatory authorities, except where the failure to do any of the
foregoing has not had, or could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. All contributions required to be made with respect to a
Foreign Pension Plan have been timely made, except where the failure to do any of the foregoing has
not had, or could not reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. No Borrower or any of its Subsidiaries has incurred any obligation in
connection with the termination of, or withdrawal from, any Foreign Pension Plan, except for any
obligations which have not had, or could not reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect. The present value of the accrued benefit liabilities
(whether or not vested) under each Foreign Pension Plan, determined as of the end of the most
recently ended fiscal year of Holdings on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable
to such benefit liabilities (any



61









 







such excess a “value shortfall”), except for any such value
shortfalls which have not had, or could not reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect.



     Section 5.15 Environmental Matters. Except with respect to any matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither
Holdings nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required for its business
under any Environmental Law, or (ii) is involved in any suit, action or proceeding, or has received
any written notice, complaint or other request for information from any Governmental Authority or
other Person, with respect to any actual or alleged Environmental Claims. For the avoidance of
doubt, this Section 5.15 shall not apply to any suits, actions, claims or proceedings against
Holdings and its Subsidiaries with respect to Primary Policies and Reinsurance Agreements entered
into in the ordinary course of business.



     Section 5.16 Compliance with Laws. Each such Borrower and its Subsidiaries has timely filed all reports, documents and other
materials required to be filed by it under all applicable Requirements of Law with any Governmental
Authority, has retained all records and documents required to be retained by it under all
applicable Requirements of Law, and is otherwise in compliance with all applicable Requirements of
Law in respect of the conduct of its business and the ownership and operation of its properties,
except for any failure to timely file, any failure to retain and any noncompliance that could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     Section 5.17 Regulated Industries. No such Borrower is (i) an “investment company,” or a company
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, or (ii) required to be licensed under The Investment Business Act of 2003 of Bermuda.



     Section 5.18 Insurance. The assets, properties and business of such Borrower and its Subsidiaries
are insured against such hazards and liabilities, under such coverages and in such amounts, as are
customarily maintained by prudent companies similarly situated and under policies issued by
insurers of recognized responsibility.



     Section 5.19 OFAC; PATRIOT Act.



     (a) To the best of its knowledge, neither such Borrower nor its Subsidiaries, in each case
that is subject to OFAC, is a Sanctioned Person or does business in a Sanctioned Country or with a
Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC
that are applicable to it, except where such violation could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     (b) Such Borrower and its Subsidiaries, in each case that is subject to the PATRIOT Act, is in
compliance in all material respects with the provisions of the PATRIOT Act that are applicable to
it. No part of the proceeds of the Loans hereunder will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in



62









 







order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.



     Section 5.20 Status under Bermuda Law.



     (a) Such Borrower is subject to civil and commercial Requirements of Law with respect to its
obligations under the Credit Documents, and the execution, delivery, and performance by such
Borrower of each of the Credit Documents to which it is a party constitute and will constitute
private and commercial acts and not public or governmental acts. No such Borrower or any of its
property has any immunity from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution, execution or
otherwise) under the Laws of Bermuda in respect of its obligations under the Credit Documents;



     (b) The Credit Documents are in proper legal form under the laws of Bermuda for the
enforcement thereof against such Borrower under the Requirements of Law of such jurisdiction, and
to ensure the legality, validity, enforceability, priority, or admissibility in evidence of the
Credit Documents. It is not necessary to ensure the legality, validity, enforceability, priority,
or admissibility in evidence of the Credit Documents against such Borrower that the Credit
Documents be filed, registered, or recorded with, or executed or notarized before, any court or
other authority in Bermuda or that any registration charge or stamp or similar tax be paid on or in
respect of the Credit Documents or any other document, except for (i) the filing of a charge with
the Bermuda Registrar of Companies, (ii) any such filing, registration, recording, execution, or
notarization as has been made or is not required to be made until the Credit Document or any other
document is sought to be enforced, and (iii) any charge or tax as has been timely paid;



     (c) As of the Closing Date, there is no tax, impost, duty, fee, assessment, or other
governmental charge, or any deduction or withholding, imposed by any Government Authority in or of
Bermuda either (i) on or by virtue of the execution or delivery of the Credit Documents or (ii) on
any payment to be made by such Borrower pursuant to the Credit Documents; and



     (d) The execution, delivery, and performance of the Credit Documents executed by such Borrower
are, under applicable foreign exchange control regulations of Bermuda, not subject to any
notification or authorization except (i) such as have been made or obtained or (ii) such as cannot
be made or obtained until a later date (provided that any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably practicable).



ARTICLE VI




AFFIRMATIVE COVENANTS




     Until the termination of the Commitments, the termination or expiration of all Letters of
Credit and the payment in full in cash of all principal and interest with respect to the Loans and
all Reimbursement Obligations together with all fees, expenses and other amounts then due and owing
hereunder, each of the Borrowers (solely as to itself and its Subsidiaries) covenants and agrees
that:



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     Section 6.1 GAAP Financial Statements. Holdings will deliver to the Administrative Agent (for
distribution to the Lenders):



     (a) As soon as available and in any event within forty-five (45) days (or, if earlier, the
fifth Business Day following the date upon which Holdings files its quarterly report under the
Exchange Act rules and regulations) after the end of each of the first three fiscal quarters of
each fiscal year, beginning with the fiscal quarter ending March 31, 2008, unaudited consolidated
and consolidating balance sheets of Holdings and its Subsidiaries as of the end of such fiscal
quarter and unaudited consolidated and consolidating statements of income and unaudited
consolidated statements of comprehensive income, cash flows and changes in shareholders’ equity for
Holdings and its Subsidiaries for the fiscal quarter then ended and for that portion of the fiscal
year then ended, in each case setting forth comparative consolidated figures as of the end of and
for the corresponding period in the preceding fiscal year, all in reasonable detail and
prepared in accordance with GAAP (subject to the absence of notes required by GAAP and subject to
normal year-end adjustments) applied on a basis consistent with that of the preceding quarter or
containing disclosure of the effect on the financial condition or results of operations of any
change in the application of accounting principles and practices during such quarter; and



     (b) As soon as available and in any event within ninety (90) days (or, if earlier, the fifth
Business Day following the date upon which Holdings files its annual report under the Exchange Act
rules and regulations) after the end of each fiscal year, beginning with fiscal year ending
December 31, 2007, an audited consolidated and unaudited consolidating balance sheet of Holdings
and its Subsidiaries as of the end of such fiscal year and the related audited consolidated and
unaudited consolidating statements of income and unaudited consolidated statements of comprehensive
income, cash flows and shareholders’ equity for Holdings and its Subsidiaries for the fiscal year
then ended, including the notes thereto, in each case setting forth comparative consolidated
figures as of the end of and for the preceding fiscal year, all in reasonable detail and (with
respect to the audited statements) certified by the independent certified public accounting firm
regularly retained by Holdings or another independent certified public accounting firm of
recognized national standing reasonably acceptable to the Administrative Agent, together with a
report thereon by such accountants that is not qualified as to going concern or scope of audit and
to the effect that such consolidated financial statements present fairly, in all material respects,
the financial position of Holdings and its Subsidiaries, and the results of their operations and
their cash flows, as of the dates and for the periods indicated, in accordance with GAAP.



     Section 6.2 Statutory Financial Statements. Holdings will deliver to the Administrative Agent
(for distribution to the Lenders) as soon as available and in any event within five Business Days
after the required filing date, an Annual Statement of each of its Material Insurance Subsidiaries
as of the end of each fiscal year beginning with the fiscal year ending December 31, 2007, in the
form filed with the Insurance Regulatory Authority in its jurisdiction of domicile, prepared in
accordance with SAP, in each case applied on a basis consistent with that of the preceding
reporting period or containing disclosure of the effect on the financial condition or results of
operations of any change in the application of accounting principles and practices during such
year.



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     Documents required to be delivered pursuant to Section 6.1, Section 6.2 or Section 6.3(c) may,
at Holdings’ option, be delivered electronically and, if so delivered, shall be deemed to have been
delivered on the date (i) on which Holdings posts such documents, or provides a link thereto, on a
website on the internet at a website address previously specified to the Administrative Agent and
the Lenders; or (ii) on which such documents are posted on behalf of Holdings on Intralinks,
SyndTrak or another relevant website, if any, to which each of the Administrative Agent and each
Lender has access; provided that (x) upon the request of the Administrative Agent or any Lender
lacking access to the internet, Intralinks or SyndTrak, Holdings shall deliver paper copies of such
documents to the Administrative Agent or such Lender (until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender) and (y) Holdings shall notify
(which may be by a facsimile or electronic mail) the Administrative Agent and each Lender of the
posting of any documents. The
Administrative Agent shall have no obligation to request the delivery of, or to maintain
copies of, the documents referred to in the proviso to the immediately preceding sentence or to
monitor compliance by Holdings with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such documents.



     Section 6.3 Other Business and Financial Information. Holdings will deliver to the Administrative
Agent (for distribution to the Lenders):



     (a) Concurrently with each delivery of the financial statements described in Section 6.1, a
Compliance Certificate in the form of Exhibit D with respect to the period covered by the financial
statements then being delivered, executed by a Financial Officer of Holdings, together with a
Covenant Compliance Worksheet reflecting the computation of the respective financial covenants set
forth in Article VII of this Agreement as of the last day of the period covered by such financial
statements;



     (b) Promptly upon filing with the relevant Insurance Regulatory Authority and in any event
within 150 days after the end of each fiscal year, beginning with the fiscal year ending December
31, 2007, a copy of any financial analysis or opinion prepared regarding the adequacy of such
Material Insurance Subsidiary’s loss reserves as of such fiscal year-end, together with a copy of
its management discussion and analysis in connection therewith (but only if and to the extent
required by the applicable Insurance Regulatory Authority with regard to such Material Insurance
Subsidiary), each in the format prescribed by the applicable insurance laws of such Material
Insurance Subsidiary’s jurisdiction of domicile;



     (c) Promptly after and in any event no later than the fifth Business Day after the sending,
filing or receipt thereof, copies of (i) all financial statements, reports, notices and proxy
statements that Holdings or any of its Material Subsidiaries shall send or make available generally
to its shareholders, (ii) all reports (other than earnings press releases) on Form 10-Q, Form 10-K
or Form 8-K (or their successor forms) or registration statements and prospectuses (other than on
Form S-8 or its successor form) that Holdings or any of its Material Subsidiaries shall render to
or file with the Securities and Exchange Commission, the National Association of Securities
Dealers, Inc. or any national securities exchange, (iii) all reports on Form A (or any successor
form) that any Material Insurance Subsidiary shall file with any Insurance Regulatory Authority,
and (iv) all material filings made under applicable state insurance holding company



65









 







acts in the
United States by Holdings or any of its Material Subsidiaries, including filings seeking approval
of transactions with Affiliates;



     (d) Promptly after (and in any event within five Business Days after (or within three Business
Days after in the case of clause (i) below)) any Responsible Officer of any Borrower obtaining
knowledge thereof, written notice of any of the following:




     (i) the occurrence of any Default or Event of Default, together with a written
statement of a Responsible Officer of such Borrower specifying the nature of such Default or
Event of Default, the period of existence thereof and the action that such Borrower has
taken and proposes to take with respect thereto;




     (ii) the institution or threatened institution of any action or suit against or
affecting Holdings or any of its Subsidiaries, or any investigation or proceeding by any
Insurance Regulatory Authority or other Governmental Authority (other than inquiries and
routine periodic investigations or reviews), in which there is a reasonable likelihood of an
adverse determination which could reasonably be expected to result in a Material Adverse
Effect, and any material development in any litigation or other proceeding previously
reported pursuant to Section 5.5 or this subsection (d);




     (iii) the receipt by Holdings or any of its Subsidiaries from any Insurance Regulatory
Authority or other Governmental Authority of (i) any written notice asserting any failure by
Holdings or any of its Subsidiaries to be in compliance with applicable Requirements of Law
or that threatens the taking of any action against Holdings or such Subsidiary or sets forth
circumstances that, if taken or adversely determined, could reasonably be expected to have a
Material Adverse Effect, or (ii) any written notice of any actual or threatened suspension,
limitation or revocation of, failure to renew, or imposition of any restraining order,
escrow or impoundment of funds in connection with, any license, permit, accreditation or
authorization of Holdings or any of its Subsidiaries, as to which there is a reasonable
possibility of an adverse determination which could reasonably be expected to result in a
Material Adverse Effect;




     (iv) the occurrence of any ERISA Event that has had, or could reasonably be expected to
have, a Material Adverse Effect, together with (x) a written statement of a Responsible
Officer of Holdings specifying the details of such ERISA Event and the action that Holdings
has taken and proposes to take with respect thereto, (y) a copy of any notice with respect
to such ERISA Event that may be required to be filed with the PBGC and (z) a copy of any
notice delivered by the PBGC to Holdings or such ERISA Affiliate with respect to such ERISA
Event;




     (v) that any contribution required to be made with respect to a Foreign Pension Plan
has not been timely made, except such contributions that could not reasonably be expected to
have a Material Adverse Effect, or that Holdings or any Subsidiary of Holdings may incur any
liability pursuant to any Foreign Pension Plan as to which there is a reasonable possibility
of liability which could reasonably be expected to have Material Adverse Effect;



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     (vi) any material change in the accounting policies or reporting practices of Holdings
or any of its Subsidiaries;




     (vii) any announcement by A.M. Best of any change in the Financial Strength Rating of
any Material Insurance Subsidiary;




     (viii) the occurrence of any actual changes in any insurance statute or regulation
governing the investment or dividend practices of any Insurance Subsidiary that could
reasonably be expected to have a Material Adverse Effect; and




     (ix) any other matter or event that has, or could reasonably be expected to have, a
Material Adverse Effect, together with a written statement of a Responsible
Officer of Holdings setting forth the nature and period of existence thereof and the
action that Holdings has taken and proposes to take with respect thereto;



     (e) Promptly, notice of the receipt by Holdings or any of its Subsidiaries of any written
notice of any denial of coverage or claim, litigation or arbitration with respect to any
Reinsurance Agreement to which it is a ceding party, involving unreserved claims in excess of 10%
of Consolidated Tangible Net Worth; and



     (f) As promptly as reasonably practicable, such other information about the business,
condition (financial or otherwise), operations or properties of Holdings or any of its Material
Subsidiaries (including any Plan or Foreign Pension Plan and any information required to be filed
under ERISA) as the Administrative Agent or the Required Lenders may from time to time reasonably
request.



     Section 6.4 Corporate Existence; Franchises; Maintenance of Properties. Such Borrower will, and
will cause its Subsidiaries to, (i) except as expressly permitted otherwise by Section 8.1,
maintain and preserve in full force and effect its legal existence, (ii) obtain, maintain and
preserve in full force and effect all other rights, franchises, licenses, permits, certifications,
approvals and authorizations required by Governmental Authorities and necessary to the ownership,
occupation or use of its properties or the conduct of its business, except to the extent the
failure to do so could not reasonably be expected to have a Material Adverse Effect, (iii) continue
to conduct and operate its businesses substantially as conducted and operated during the present
and preceding fiscal years except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect and (iv) keep all properties in good working order and
condition (normal wear and tear excepted) and from time to time make all necessary repairs to and
renewals and replacements of such properties, except to the extent that any of such properties are
obsolete or are being replaced and except to the extent the failure to do so could not reasonably
be expected to have a Material Adverse Effect.



     Section 6.5 Compliance with Laws. Such Borrower will, and will cause each of its Subsidiaries to,
comply in all respects with all Requirements of Law (including all Environmental Laws) applicable
in respect of the conduct of its business and the ownership and operation of its properties, except
to the extent the failure so to comply could not have, or reasonably be expected to have, a
Material Adverse Effect.



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     Section 6.6 Payment of Obligations. Such Borrower will, and will cause each of its Subsidiaries
to, (i) pay all liabilities and obligations as and when due (subject to any applicable
subordination provisions), except to the extent failure to do so could not reasonably be expected
to have a Material Adverse Effect, and (ii) pay and discharge all Taxes, assessments and
governmental charges or levies imposed upon it, upon its income or profits or upon any of its
properties, prior to the date on which penalties would attach thereto, and all lawful claims that,
if unpaid, might become a Lien upon any of the properties of any Borrower or any of their
respective Subsidiaries; provided, however, that no Borrower or any of its
Subsidiaries shall be required to pay any such liability, obligation, Tax,
assessment, charge, levy or claim that is being contested in good faith and by proper
proceedings and as to which such Borrower or such Subsidiary is maintaining adequate reserves with
respect thereto in accordance with and to the extent required by GAAP.



     Section 6.7 Insurance. Such Borrower will, and will cause each of its Subsidiaries to, maintain
with financially sound and reputable insurance companies insurance with respect to its assets,
properties and business, against such hazards and liabilities, of such types and in such amounts,
as is customarily maintained by companies in the same or similar businesses similarly situated.



     Section 6.8 Maintenance of Books and Records; Inspection. Such Borrower will, and will cause each
of its Subsidiaries to, (i) maintain adequate books, accounts and records, in which full, true and
correct entries shall be made of all financial transactions in relation to its business and
properties in all material respects , and prepare all financial statements required under this
Agreement, in each case in accordance with GAAP or SAP, as applicable, and in compliance with the
requirements of any Governmental Authority having jurisdiction over it, and (ii) permit employees
or agents of the Administrative Agent or any Lender to visit and inspect its properties and examine
or audit its books, records, working papers and accounts and make copies and memoranda of them, and
to discuss its affairs, finances and accounts with its officers and employees and, upon notice to
Holdings, the independent public accountants of Holdings and its Subsidiaries (and by this
provision the Borrowers authorize such accountants to discuss the finances and affairs of Holdings
and its Subsidiaries), provided that, so long as no Default or Event of Default has
occurred and is continuing, (i) such visits, inspections and discussions shall be made upon
reasonable notice and during normal business hours and shall be of a reasonable scope and length,
(ii) such visits, inspections and discussions shall not unduly interfere with the business of any
Borrower, (iii) there shall be no more than two such visits or inspections in any period of 12
consecutive calendar months and (iv) the costs to the Borrowers of such visits or inspections shall
be limited and shall not exceed, in any period of 12 consecutive calendar months, (x) $20,000 for
the aggregate out-of-pocket expenses of the Administrative Agent and any Lenders plus (y) $50,000
for the fees and expenses of any third parties retained by the Administrative Agent, which are not
Affiliates of the Administrative Agent, for purposes of such visits or inspections.



     Section 6.9 Dividends. Such Borrower will take all action necessary to cause its Subsidiaries to
make such dividends, distributions or other payments to it as shall be necessary for such Borrower
to make payments the Obligations in accordance with the terms of this Agreement. In the event the
approval of any Governmental Authority or other Person is required in order for any such Subsidiary
to make any such dividends, distributions or other payments to



68









 







such Borrower, or for such Borrower
to make any such principal or interest payments, such Borrower will forthwith exercise its
commercially reasonable efforts and take all actions permitted by law and necessary to obtain such
approval.



     Section 6.10 OFAC; PATRIOT Act Compliance. Each Borrower that is subject to OFAC will, and will cause each of its Subsidiaries that it
is so subject to, (i) use commercially reasonable efforts to refrain from doing business in a
Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United
States administered by OFAC, and (ii) provide, to the extent commercially reasonable, such
information and take such actions as are reasonably requested by the Administrative Agent or any
Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with
the PATRIOT Act.



     Section 6.11 Further Assurances. Such Borrower will, and will cause each of its Material
Subsidiaries to, make, execute, endorse, acknowledge and deliver any amendments, modifications or
supplements hereto and restatements hereof and any other agreements, instruments or documents, and
take any and all such other actions, as may from time to time be reasonably requested by the
Administrative Agent or the Required Lenders to effect, confirm or further assure or protect and
preserve the interests, rights and remedies of the Administrative Agent and the Lenders under this
Agreement and the other Credit Documents.



     Section 6.12 Use of Proceeds. Such Borrower will use the proceeds of the Loans and the Letters of
Credit, in each case, not in contravention of any Requirement of Law or of any Credit Document.



ARTICLE VII




FINANCIAL COVENANTS




     Until the termination of the Commitments, the termination or expiration of all Letters of
Credit and the payment in full in cash of all principal and interest with respect to the Loans and
all Reimbursement Obligations together with all fees, expenses and other amounts then due and owing
hereunder, each of the Borrowers (solely as to itself and its Subsidiaries) covenants and agrees
that:



     Section 7.1 Maximum Consolidated Indebtedness to Total Capitalization. The ratio of Consolidated
Indebtedness to Total Capitalization as of the last day of any fiscal quarter or fiscal year shall
not be greater than 0.35 to 1.0.



     Section 7.2 Minimum Consolidated Net Worth. Consolidated Net Worth shall be at all times an
amount not less than (i) the sum of (x) $1,650,000,000, plus (y) 25% of Consolidated Net Income for
each fiscal quarter (beginning with the fiscal quarter ending December 31, 2007) for which
Consolidated Net Income is a positive amount (measured at the end of each such fiscal quarter) plus
(z) 25% of the aggregate increases in total shareholders’ equity of Holdings and its Subsidiaries
after September 30, 2007 by reason of the issuance or sale of Capital Stock of Holdings or any
Subsidiary of Holdings or other capital contribution to Holdings minus (ii) the amount of any
extraordinary dividend
payment or repurchase of Capital Stock of Holdings made after the Closing Date so long as and
after giving effect thereto, (a) Consolidated Net Worth is



69









 







not less than $1,400,000,000, (b) no
Default or Event of Default has occurred and is continuing, (c) all consents, approvals,
authorizations and other actions required by applicable Requirements of Law in order to make such
payment or repurchase shall have been obtained and (d) each such payment or repurchase has been
approved by the board of directors of Holdings.



     Section 7.3 Minimum Financial Strength Rating. (i) Each Material Insurance Subsidiary shall
 maintain a Financial Strength Rating at all times and (ii) the Financial Strength Rating of each
Material Insurance Subsidiary shall not be lower than “A-” at any time.



ARTICLE VIII




NEGATIVE COVENANTS




     Until the termination of the Commitments, the termination or expiration of all Letters of
Credit and the payment in full in cash of all principal and interest with respect to the Loans and
all Reimbursement Obligations together with all fees, expenses and other amounts then due and owing
hereunder, each of the Borrowers (solely as to itself and its Subsidiaries) covenants and agrees
that:



     Section 8.1 Fundamental Changes. Except as permitted under Section 8.4, such Borrower will not,
and will not permit or cause any of its Subsidiaries to, liquidate, wind up or dissolve, or enter
into any consolidation, merger or other combination, or agree to do any of the foregoing;
provided, however, that any such Borrower or any Subsidiary may merge into or
consolidate with any other Person so long as (y) the surviving corporation is a Borrower or a
Wholly Owned Subsidiary of a Borrower (and in any event, if a Borrower is a party to such merger or
consolidation, the surviving corporation shall be a Borrower, it being understood and agreed that
in the case of a merger or consolidation between a Subsidiary of Holdings with Holdings, the
survivor corporation of such merger or consolidation shall be Holdings), and (z) immediately after
giving effect thereto, no Default or Event of Default would occur or exist.



     Section 8.2 Indebtedness. Such Borrower will not, and will not permit or cause any of its
Subsidiaries to create, incur, assume or permit to exist any Indebtedness, or agree, become or
remain liable (contingent or otherwise) to do any of the foregoing, except for:




     (i) the Obligations;




     (ii) Indebtedness under the Secured Facility;




     (iii) unsecured Indebtedness incurred by Holdings, so long as upon the incurrence
thereof no Default or Event of Default would occur or exist;




     (iv) Indebtedness of Subsidiaries of Holdings owing to Holdings or to other
Subsidiaries of Holdings;




     (v) Indebtedness consisting of current liabilities not for borrowed money incurred in
the ordinary course of business;



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     (vi) unsecured Indebtedness incurred by (A) any Insurance Subsidiary in respect of
standby letters of credit and (B) any Insurance Subsidiary in respect of guarantees issued
to support obligations of any other Subsidiary of Holdings incurred in the ordinary course
of business;




     (vii) Indebtedness existing on the Closing Date and described in Schedule 8.2 and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (x) after giving effect to any
such extension, renewal, or replacement, the aggregate Indebtedness under this clause (vii)
incurred on or after the Closing Date, when aggregated, with any Indebtedness outstanding
under clause (xii) of this Section, shall not exceed $25,000,000, and (y) the terms relating
to principal amount, amortization, maturity, collateral (if any), and subordination (if
any), and other material terms taken as a whole, of the Indebtedness incurred with respect
to such extension, renewal, or replacement, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material respect to
such Subsidiary or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being extended, renewed, or replaced;




     (viii) obligations (contingent or otherwise) existing or arising under any Hedge
Agreement entered into by such Person in the ordinary course of business for the purpose of
hedging currency or interest rate and not for purposes of speculation or taking a “market
view”;




     (ix) Indebtedness of any Person existing at the time such Person is merged into or
consolidated with Holdings or any of its Subsidiaries by Acquisition and any extensions,
renewals and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (x) no Default or Event of Default exists or
arises after giving effect to such Acquisition, (y) such Indebtedness was not incurred in
contemplation of such Acquisition and (z) no Subsidiary (other than the existing obligor at
the time such Person was acquired) shall incur or have any direct or indirect liability for
such Indebtedness;




     (x) Indebtedness which is incurred in connection with any Lien permitted under Section
8.3;




     (xi) unsecured Indebtedness incurred by any Subsidiary of Holdings organized or
incorporated in the United States of America or any political subdivision thereof in an
aggregate amount outstanding at any time not to exceed $100,000,000; provided that
(x) such Indebtedness does not contain any measures of financial performance (however
expressed and whether stated as a covenant, as a ratio, as a fixed threshold, as an
event of default, as a mandatory prepayment provision, or otherwise) which, taken as a
whole, are materially more restrictive than those measures of financial performance
contained in this Agreement, (y) upon the incurrence thereof no Default or Event of Default
would occur or exist and (z) such Subsidiary shall not at any time own, directly or
indirectly, any Capital Stock of Allied World; and



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     (xii) unsecured Indebtedness other than any of the foregoing in an aggregate amount
outstanding at any time not to exceed $25,000,000 less the Indebtedness incurred which is
permitted under clause (vii) of this Section and is outstanding on any date of
determination; provided that (x) such Indebtedness does not contain any measures of
financial performance (however expressed and whether stated as a covenant, as a ratio, as a
fixed threshold, as an event of default, as a mandatory prepayment provision, or otherwise)
which, taken as a whole, are materially more restrictive on the Borrowers than those
measures of financial performance contained in this Agreement and (y) upon the incurrence
thereof no Default or Event of Default would occur or exist.



     Section 8.3 Liens. Such Borrower will not, and will not permit or cause any of its Subsidiaries
to, directly or indirectly, make, create, incur, assume or suffer to exist, any Lien upon or with
respect to any part of its property or assets, whether now owned or hereafter acquired, or agree to
do any of the foregoing, other than the following:




     (i) Liens created by or otherwise existing under the Secured Facility;




     (ii) Liens existing on the Closing Date and set forth on Schedule 8.3, and any
extensions, renewals or replacements thereof; provided that any such extension,
renewal or replacement Lien shall be limited to all or a part of the property that secured
the Lien so extended, renewed or replaced (plus any improvements on such property) and shall
secure on those obligations that it secures on the date hereof (and any renewals,
replacements, refinancings or extensions of such obligations that do not increase the
outstanding principal amount thereof);




     (iii) Permitted Liens;




     (iv) Liens on Invested Assets of Allied World securing obligations of Allied World in
connection with its letter of credit facility established with Citibank Europe plc.;




     (v) Liens in respect of Capital Leases, synthetic lease obligations and purchase money
obligations for fixed or capital assets used by Holdings or any of its Subsidiaries in the
ordinary course of its business, securing Indebtedness not to exceed $25,000,000 in
principal amount and incurred solely to pay all or a portion of the purchase price thereof;
provided that any such Lien (A) shall attach to such property concurrently with or
within ninety (90) days after the acquisition thereof by Holdings or such Subsidiary, (B)
shall not exceed the lesser of (y) the fair market value of such property or (z) the cost
thereof to Holdings or such Subsidiary and (C) shall not encumber any other property of
Holdings or any of its Subsidiaries; and




     (vi) Liens not otherwise permitted by this Section 8.3 on obligations incurred by
Holdings securing Indebtedness in an aggregate principal amount not at any time exceeding
$25,000,000.



     Section 8.4 Disposition of Assets. Such Borrower will not, and will not permit or cause any of
its Material Subsidiaries to, sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of transactions) all or any portion of its assets, business or
properties (including any Capital Stock of any Subsidiary), or enter into any arrangement with



72









 







any Person providing for the lease by any Borrower or any Subsidiary as lessee of any asset that
has been sold or transferred by such Borrower or such Subsidiary to such Person, or agree to do any
of the foregoing, except for:




     (i) sales of assets in the ordinary course of business for fair market value;




     (ii) the sale, lease or other disposition of assets by a Subsidiary of a Borrower to
such Borrower or to another Wholly Owned Subsidiary, to the extent permitted by applicable
Requirements of Law and each relevant Insurance Regulatory Authority; provided that
(x) immediately after giving effect thereto, no Default or Event of Default would occur or
exist, (y) unless permitted by Section 8.4(iii), in no event shall Holdings contribute, sell
or otherwise transfer, or permit any Insurance Subsidiary to issue or sell, any of the
Capital Stock of such Insurance Subsidiary to any Person other than a Borrower, and (z) such
sale or disposition would not adversely affect the ability of any Insurance Subsidiary party
thereto to pay dividends or otherwise make distributions in respect of its Capital Stock;
and




     (iii) the sale or disposition of assets outside the ordinary course of business,
provided that such sales or dispositions shall not individually, or in the
aggregate, exceed in any fiscal year 20% of Consolidated Net Worth determined as of the most
recently ended fiscal quarter for which financial statements are available; provided
further that immediately after giving effect thereto, no Default or Event of Default would
occur or exist.



     Section 8.5 Transactions with Affiliates. Such Borrower will not, and will not permit or cause
any of its Subsidiaries to, enter into any transaction (including any purchase, sale, lease or
exchange of property or the rendering of any service) with any officer, director, stockholder or
other Affiliate of such Borrower or such Subsidiary other than:




     (i) transactions between or among any of the Borrowers and their Wholly-Owned
Subsidiaries, between or among any of such Wholly-Owned Subsidiaries, or between or among
any of the Borrowers;




     (ii) transactions with any officer, director, stockholder or other Affiliate in good
faith in the ordinary course of any Borrower’s business and on terms materially no less
favorable to such Borrower or any Subsidiary than those that could have been obtained in a
comparable transaction on an arm’s length basis from a Person that is not an Affiliate; and




     (iii) any transaction permitted under Section 8.6.



     Section 8.6 Restricted Payments. Such Borrower will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, declare or make any dividend payment, or make any other
distribution of cash, property or assets, in respect of any of its Capital Stock or any warrants,
rights or options to
acquire its Capital Stock, or purchase, redeem, retire or otherwise acquire for value any
shares of its Capital Stock or any warrants, rights or options to acquire its Capital Stock (other
than pursuant to and in accordance with stock option plans and other benefit plans for directors,
officers or employees of Holdings and its Subsidiaries), or set




73












 




aside funds
for any of the foregoing, except (i) that any Subsidiary may declare and pay dividends on or make
distributions to a Borrower or to a Wholly Owned Subsidiary or set aside funds for the foregoing,
(ii) Holdings may declare and pay dividends on, make distributions in respect of or repurchase,
redeem, retire or otherwise acquire its Capital Stock or set aside funds for the foregoing so long
as no Default or Event of Default has occurred and is continuing before or after giving effect to
the declaration or payment of such dividends, distributions, repurchases or other acquisitions, and
(iii) Holdings and its Subsidiaries may declare and pay dividends in respect of any Hybrid Equity
Securities or preferred stock if, at the time of and after giving effect to any such payment, no
Default or Event of Default under Section 9.1(a), clause (i) of Section 9.1(e), Section 9.1(f) or
Section 9.1(g)) shall have occurred and be continuing.




     Section 8.7 Lines of Business. Such Borrower will not, and will not permit or cause
any of its Subsidiaries to, engage to any material extent in any business other than the
reinsurance or insurance business and other businesses engaged in by its and its Subsidiaries on
the Closing Date or a business reasonably related thereto, including businesses that service or
support the operations of Holdings and its Subsidiaries.



     Section 8.8 Fiscal Year. Such Borrower will not, and will not permit or cause any of
its Subsidiaries to, change the ending date of its fiscal year to a date other than December 31
unless (i) Holdings shall have given the Administrative Agent written notice of its intention to
change such ending date at least sixty (60) days prior to the effective date thereof and (ii) prior
to such effective date this Agreement shall have been amended to make any changes in the financial
covenants and other terms and conditions to the extent necessary, in the reasonable determination
of the Administrative Agent, to reflect the new fiscal year ending date.



     Section 8.9 Accounting Changes. Such Borrower will not, and will not permit or cause
any of its Subsidiaries to, make or permit any material change in its accounting policies or
reporting practices, except as may be required or permitted by GAAP or SAP, as applicable.



     Section 8.10 Limitation on Certain Restrictions. Such Borrower will not, and will not
permit or cause any of its Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any restriction or encumbrance on (i) the ability of such
Borrower to perform and comply with its obligations under the Credit Documents in any material
respect or (ii) the ability of any Subsidiary of such Borrower to make any dividend payments or
other distributions in respect of its Capital Stock, to repay Indebtedness owed to such Borrower or
any other Subsidiary, to make loans or advances to such Borrower or any other Subsidiary, or to
transfer any of its assets or properties to such Borrower or any other Subsidiary, in each case
other than such restrictions or encumbrances existing under or by reason of (y) the Credit
Documents, and (z) applicable Requirements of Law.



     Section 8.11 Private Act. No Borrower will become subject to a Private Act, except
such Private Acts which could not reasonably be expected to have a Material Adverse Effect.



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ARTICLE IX




EVENTS OF DEFAULT




     Section 9.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an “Event of Default”:



     (a) Any Borrower shall fail to pay (i) any principal of any Loan of such Borrower or any
Reimbursement Obligation of such Borrower when due or (ii) any interest on any Loan of such
Borrower or in respect of any L/C Disbursement, any fee or any other Obligation of such Borrower
under this Agreement or under the other Credit Documents within 5 days after such interest, fee or
other amount becomes due in accordance with the terms hereof or thereof; or



     (b) Any Borrower shall fail to, or fail to cause its Subsidiaries that are subject thereto to,
observe, perform or comply with any condition, covenant or agreement applicable to it contained in
any of Section 2.13, Section 6.3(d)(i) or Section 6.4(i), Article VII and Article VIII; or



     (c) Any Borrower shall fail to observe, perform or comply with any condition, covenant or
agreement contained in this Agreement or any of the other Credit Documents other than those
enumerated in Section 9.1(a) and (b), and such failure shall continue unremedied for a period of
thirty (30) days after the earlier of (y) the date on which a Responsible Officer of such Borrower
acquires knowledge thereof and (z) the date on which written notice thereof is delivered by the
Administrative Agent or any Lender to such Borrower; or



     (d) Any representation or warranty made or deemed made by or on behalf of any Borrower in this
Agreement, any of the other Credit Documents or in any certificate, instrument,
report or other document furnished at any time in connection herewith or therewith shall prove
to have been incorrect, false or misleading in any material respect as of the time made, deemed
made or furnished; or



     (e) Holdings or any of its Subsidiaries shall (i) fail to pay when due (whether by scheduled
maturity, acceleration or otherwise and after giving effect to any applicable grace period or
notice provision) (y) any principal of or interest on any Indebtedness (other than the Indebtedness
incurred pursuant to this Agreement or a Hedge Agreement) having an aggregate principal amount of
at least $25,000,000 or (z) any termination or other payment under any Hedge Agreement having a net
termination obligation of at least $25,000,000 or (ii) fail to observe, perform or comply with any
condition, covenant or agreement contained in any agreement or instrument evidencing or relating to
any such Indebtedness or Hedge Agreement, or any other event shall occur or condition exist in
respect thereof, and the effect of such failure, event or condition is to cause, or permit the
holder or holders of such Indebtedness or Hedge Agreement (or a trustee or agent on its or their
behalf) to cause (with or without the giving of notice, lapse of time, or both), without regard to
any subordination terms with respect thereto, such Indebtedness or Hedge Agreement to become due,
or to be prepaid, redeemed, purchased or defeased, prior to its stated maturity; or



     (f) Holdings or any of its Material Subsidiaries, shall (i) file a voluntary petition or
commence a voluntary case seeking liquidation, winding-up, reorganization, dissolution,



75









 







arrangement, readjustment of debts or any other relief under the Bankruptcy Code or under any other
Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any petition or case of the type described in
Section 9.1(g) below, (iii) apply for or consent to the appointment of or taking possession by a
custodian, trustee, receiver or similar official for or of itself or all or a substantial part of
its properties or assets, (iv) fail generally, or admit in writing its inability, to pay its debts
generally as they become due, (v) make a general assignment for the benefit of creditors or (vi)
take any corporate action to authorize or approve any of the foregoing; or



     (g) Any involuntary petition or case shall be filed or commenced against Holdings or any of
its Material Subsidiaries, seeking liquidation, winding up, reorganization, dissolution,
arrangement, readjustment of debts, the appointment of a custodian, trustee, receiver or similar
official for it or all or a substantial part of its properties or any other relief under the
Bankruptcy Code or under any other Debtor Relief Law now or hereafter in effect, and such petition
or case shall continue undismissed and unstayed for a period of sixty (60) days; or an order,
judgment or decree approving or ordering any of the foregoing shall be entered in any such
proceeding; or



     (h) Any one or more money judgments, writs or warrants of attachment, executions or similar
processes involving an aggregate amount (to the extent not paid or fully bonded or covered by
independent third party insurance as to which the surety or insurer, as the case may be, has the
financial ability to perform and either (i) has become substantially involved in the defense of
such claim and has not denied coverage of such claim in writing or (ii) has acknowledged liability
for such claim in writing) in excess of $25,000,000 shall be entered or filed against any Borrower
or any Material Subsidiary or any of their respective properties and the same shall not be paid,
dismissed, bonded, vacated, stayed or discharged within a period of
thirty (30) days or in any event later than five (5) days prior to the date of any proposed
sale of such property thereunder; or



     (i) (i) Any ERISA Event shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result thereof, together with all other ERISA Events then existing, there shall exist a
reasonable likelihood that Holdings or any ERISA Affiliate would incur liability to any one or more
Plans or Multiemployer Plans or to the PBGC (or to any combination thereof) in excess of
$25,000,000, (ii) institution of any steps by any Borrower or any other Person to terminate a
Foreign Benefit Plan if as a result of such termination, a Borrower or any of its respective
Subsidiaries could be required to make a contribution to such Foreign Benefit Plan, or could incur
a liability or obligation to such Foreign Benefit Plan in excess of $25,000,000 or (iii) a
contribution failure with respect to any Foreign Benefit Plan sufficient to give rise to a Lien
under applicable law in excess of $25,000,000 occurs; or



     (j) Any Insurance Regulatory Authority or other Governmental Authority having jurisdiction
shall issue any order of conservation, supervision, rehabilitation or liquidation or any other
order of similar effect in respect of any Borrower, Material Insurance Subsidiary or Material
Subsidiary; or



     (k) Any Insurance Regulatory Authority or other Governmental Authority revokes or fails to
renew any insurance license, permit, or franchise of any



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Material Insurance Subsidiary, or imposes
any restriction or condition on any insurance license, permit, or franchise of any Material
Insurance Subsidiary, if such revocation, non-renewal, condition, or restriction is reasonably
likely to have a Material Adverse Effect; or



     (l) Any material provision of any Credit Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Borrower
contests in any manner the validity or enforceability of any Credit Document; or any Borrower
denies that it has any or further liability or obligation under any Credit Document, or purports to
revoke, terminate, or rescind any Credit Document, in any case other than (y) as expressly
permitted hereunder or thereunder or (z) the occurrence of the Final Expiry Date; or



     (m) At any time, Allied World or any other Material Insurance Subsidiary shall cease to be a
Wholly Owned Subsidiary of Holdings; or



     (n) Any of the following shall occur: (i) any Person or group of Persons acting in concert as
a partnership or other group, shall, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, have become, after the date hereof, the
“beneficial owner” (within the meaning of such term under Rule 13d-3 under the Exchange Act) of
securities of Holdings representing 40% or more of the Total Voting Power of the then outstanding
securities of Holdings ordinarily (and apart from rights accruing under special circumstances)
having the right to vote in the election of directors; or (ii) the Board of Directors of Holdings
shall cease to consist of a majority of the individuals who constituted the Board of Directors as
of the Closing Date or who shall have become a member thereof subsequent to the Closing Date after
having been nominated, or otherwise approved in writing,
by at least a majority of individuals who constituted the Board of Directors of Holdings as of
the Closing Date (or their replacements approved as herein required).



     Section 9.2 Remedies; Termination of Commitments, Acceleration, Etc. Upon and at any
time after the occurrence and during the continuance of any Event of Default, the Administrative
Agent shall at the direction, or may with the consent, of the Required Lenders, take any or all of
the following actions at the same or different times:



     (a) Declare the Commitments and the Issuing Banks’ obligation to issue Letters of Credit to be
terminated, whereupon the same shall terminate; provided that, upon the occurrence of a
Bankruptcy Event, the Commitments and the Issuing Banks’ obligation to issue Letters of Credit
shall automatically be terminated;



     (b) Declare all or any part of the outstanding principal amount of the Loans to be immediately
due and payable, whereupon the principal amount so declared to be immediately due and payable,
together with all interest accrued thereon and all other amounts payable under this Agreement, the
Notes and the other Credit Documents, shall become immediately due and payable without presentment,
demand, protest, notice of intent to accelerate or other notice or legal process of any kind, all
of which are hereby knowingly and expressly waived by the Borrowers; provided that, upon
the occurrence of a Bankruptcy Event or an Event of Default pursuant to Section 9.1(j), all of the
outstanding principal amount of the Loans and all other amounts described in this subsection (b)
shall automatically become immediately due and payable without presentment, demand, protest, notice
of intent to accelerate or other notice or



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legal process of any kind, all of which are hereby
knowingly and expressly waived by the Borrowers;



     (c) Direct each Borrower to deposit (and each such Borrower hereby agrees, forthwith upon
receipt of notice of such direction from the Administrative Agent, to deposit) with the
Administrative Agent from time to time such amount of cash as is equal to 100% of the aggregate
Stated Amount of all of such Borrower’s Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have drawn or be entitled at such time to draw
thereunder), such amount to be held by the Administrative Agent in such Borrower’s Cash Collateral
Account as security for the Letter of Credit Exposure as described in Section 3.7;



     (d) Terminate any Letter of Credit or give a notice of nonrenewal in respect thereof if
permitted in accordance with its terms; and



     (e) Exercise all rights and remedies available to it under this Agreement, the other Credit
Documents and applicable law.



     Section 9.3 Remedies; Set Off. In addition to all other rights and remedies available
under the Credit Documents or applicable law or otherwise, upon and at any time after the
occurrence and during the continuance of any Event of Default, each Lender, each Fronting Bank and
each of their respective Affiliates may, and each is hereby authorized at any such time and from
time to time,
to the fullest extent permitted by applicable law, without presentment, demand, protest or
other notice of any kind, all of which are hereby knowingly and expressly waived by the Borrowers,
to set off and to apply any and all deposits (general or special, time or demand, provisional or
final) and any other property at any time held (including at any branches or agencies, wherever
located), and any other indebtedness at any time owing, by such Lender, such Fronting Bank or any
such Affiliate to or for the credit or the account of any Borrower against any or all of the
Obligations of such Borrower now or hereafter existing under this Agreement or any other Credit
Documents to such Lender or such Fronting Bank, whether or not such Obligations may be contingent
or unmatured. Each Lender and each Fronting Bank agrees promptly to notify the applicable Borrower
and the Administrative Agent after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of such set-off
and application.



ARTICLE X




THE ADMINISTRATIVE AGENT




     Section 10.1 Appointment and Authority. Each of the Lenders (for purposes of this
Article, references to the Lenders shall also mean each Fronting Bank) hereby irrevocably appoints
Wachovia to act on its behalf as the Administrative Agent hereunder and under the other Credit
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. Except as expressly
set forth in Section 10.6, the provisions of this Article are solely for the



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benefit of the
Administrative Agent and the Lenders, and no Borrower shall have any right as a third party
beneficiary of any of such provisions.



     Section 10.2 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with any Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



     Section 10.3 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Credit Documents.
Without limiting the generality of the foregoing, the Administrative Agent:



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



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



     (c) shall not, except as expressly set forth herein and in the other Credit Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any information relating
to any Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.


The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Section 9.2 and Section 11.5) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default or Event of Default unless and until notice describing
such Default or Event of Default is given to the Administrative Agent by Holdings or a Lender.



The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement or any
other Credit Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance


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or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Credit Document 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 Administrative
Agent.




     Section 10.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance of a
Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or any Fronting Bank, the Administrative Agent may
presume that such condition is satisfactory to such Lender or such Fronting Bank unless the
Administrative Agent shall have received notice to the contrary from such Lender or such Fronting
Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for one or both Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or experts.



     Section 10.5 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Credit Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent 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 Administrative Agent.



     Section 10.6 Resignation of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders and Holdings. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, in consultation with Holdings, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall
notify Holdings and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Credit Documents (except that in the case of any collateral security held by the



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Administrative Agent on behalf of the Lenders under any of the Credit Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Credit Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed in writing between Holdings and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other Credit
Documents, the provisions of this Article and Section 11.1 shall continue in effect for the benefit
of such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.




     Section 10.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties 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 the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Credit Document or any
related agreement or any document furnished hereunder or thereunder.



     Section 10.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Joint Arrangers, syndication agent, documentation agents or other agents listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of
the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent or a
Lender hereunder.



     Section 10.9 The L/C Agent and the Fronting Banks. The provisions of this Article X
(other than Section 10.2) shall apply to the L/C Agent and the Fronting Banks mutatis
mutandis to the same extent as such provisions apply to the Administrative Agent.



ARTICLE XI




MISCELLANEOUS




     Section 11.1 Expenses; Indemnity; Damage Waiver.



     (a) The Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges and



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disbursements
of counsel for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of the Commitment Letter, this Agreement and the other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Agent or the Fronting Banks in connection with the
Issuance of any Letter of Credit or any demand for payment thereunder (iii) all reasonable out-
of-pocket expenses incurred by the Administrative Agent, the L/C Agent, any Lender or any
Issuing Bank (including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the L/C Agent, any Lender or any Fronting Bank), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Credit
Documents, including its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit Issued hereunder, including all such reasonable out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit,
and (iv) any civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses
(including counsel fees and disbursements) incurred in connection with defense thereof by, the
Administrative Agent or any Lender as a result of conduct of any Borrower or any Subsidiary of any
Borrower that violates a sanction enforced by OFAC.



     (b) The Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof), the
L/C Agent, each Fronting Bank, each Lender, and each Related Party of any of the foregoing persons
(each such person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of one U.S. and one Bermuda counsel for any
Indemnitee)(collectively, “Losses”), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by any Borrower arising out of, in connection with, or as a result
of (i) the execution or delivery of the Commitment Letter, this Agreement, any other Credit
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Agent or any Fronting
Bank, as the case may be, to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Substances on or from any
property owned or operated by any Borrower, or any Environmental Claim related in any way to any
Borrower to the extent such Losses arise out of or result from a Credit Extension by an Indemnitee
under this Agreement, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory
whether brought by a third party or by any Borrower, and 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 (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any
Borrower against such Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Credit Document, if such Borrower has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent jurisdiction.



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     (c) To the extent that the Borrowers for any reason fail indefeasibly to pay any amount
required under Section 11.1(a) or Section 11.1(b) to be paid by it to the Administrative Agent (or
any sub-agent thereof), the L/C Agent, any Fronting Bank or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent),
the L/C Agent, such Fronting Bank or such Related Party, as the case may be, such Lender’s
proportion (based on the percentages as used in determining the Required Lenders as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent), the L/C Agent or any Fronting Bank in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent), the L/C Agent or any Fronting Bank in connection with such capacity. The
obligations of the Lenders under this Section 11.1(c) are subject to the provisions of Section
2.3(d).



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



     (e) All amounts due under this Section shall be payable by the applicable Borrower upon demand
therefor.



     Section 11.2 Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of
Process.



     (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE
PROVIDED IN ANY CREDIT DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES); PROVIDED THAT EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT OR APPLICATION THEREFOR OR, IF NO SUCH LAWS OR RULES ARE
DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES OF THE INTERNATIONAL CHAMBER OF COMMERCE, AS IN
EFFECT FROM TIME TO TIME (THE “ISP”), AND, AS TO MATTERS NOT GOVERNED BY THE ISP, THE LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).



     (b) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION



83









 







OF THE COURTS 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 ANY
OTHER CREDIT DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY FRONTING BANK MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
AGAINST EITHER BORROWER OR ANY OF THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN
ANY COURT REFERRED TO IN SECTION 11.2(B). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 11.4. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     (e) ON OR PRIOR TO THE CLOSING DATE, THE BORROWERS SHALL APPOINT ALLIED WORLD ASSURANCE
COMPANY (U.S.) INC. (THE “PROCESS AGENT”), WITH AN OFFICE ON THE DATE HEREOF AT 199 WATER
STREET, 16TH FLOOR, NEW YORK, NY 10038, UNITED STATES OF AMERICA, AS ITS AGENT TO
RECEIVE ON ITS BEHALF AND ITS PROPERTY SERVICE OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING, PROVIDED THAT A COPY OF SUCH PROCESS
IS ALSO MAILED IN THE MANNER SET FORTH IN SECTION 11.4. SUCH SERVICE MAY BE MADE BY MAILING OR
DELIVERING A COPY OF SUCH PROCESS TO THE BORROWERS IN CARE OF THE PROCESS AGENT AT THE PROCESS
AGENT’S ABOVE ADDRESS, AND THE BORROWERS HEREBY IRREVOCABLY AUTHORIZE AND DIRECT THE PROCESS AGENT
TO ACCEPT SUCH SERVICE ON THEIR BEHALF. THE



84









 







BORROWERS ALSO IRREVOCABLY CONSENT TO SERVICE OF
PROCESS IN THE MANNER PROVIDE FOR NOTICES IN SECTION 11.4. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     Section 11.3
Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     Section 11.4 Notices; Effectiveness; Electronic Communication.



     (a) Except in the cases of notices and other communications expressly permitted to be given by
telephone (and except as provided in Section 11.4(b)), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or nationally recognized
overnight courier service, mailed by certified or registered mail, first class postage prepaid and
return receipt requested, or sent by telecopier as follows:




     (i) if to any Borrower, the Administrative Agent, the L/C Agent or any Fronting Bank,
to it at the address (or telecopier number) specified for such person on Schedule 1.1(a);
and




     (ii) if to any Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient). Notices delivered through electronic communications to the extent provided in
Section 11.4(b) shall be effective as provided in Section 11.4(b).



     (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic



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



     (c) Any party hereto may change its address or telecopier number for notices and other
communications hereunder by notice to the other parties hereto (except that each Lender need not
give notice of any such change to the other Lenders in their capacities as such).



     (d) Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint
Arrangers will make available to the Lenders materials and/or information provided by or on behalf
of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”).
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent, the Joint Arrangers or any of their respective Related
Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender,
or any other Person for losses, claims, damages, liabilities, or expenses of any kind (whether in
tort, contract, or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities, or expenses are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Agent Party; provided, however, that in no event shall any Agent Party have
any liability to any Borrower, any Lender, or any other Person for indirect, special, incidental,
consequential, or punitive damages (as opposed to direct or actual damages).



     Section 11.5 Amendments, Waivers, etc. No amendment, modification, waiver or
discharge or termination of, or consent to any departure by any Borrower from, any provision of
this Agreement or any other Credit Document shall be effective unless in a writing signed by the
Required Lenders (or by the Administrative Agent at the direction or with the consent of the



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Required Lenders), and then the same shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment or
modification shall be effective without the written consent of the Credit Parties and no such
amendment, modification, waiver, discharge, termination or consent shall:



     (a) increase the Commitment of any Lender without the written consent of such Lender;



     (b) reduce the principal amount of any Loan or the amount of any Reimbursement Obligation of
any Borrower in respect of any L/C Disbursement or reduce the rate of interest thereon, or reduce
any fees or other amounts payable hereunder, without the written consent of each Lender directly
affected thereby;



     (c) postpone the scheduled date of payment of the principal amount of any Loan or for
reimbursement of any L/C 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 or any Letter of Credit (other than an extension thereof pursuant to
an “evergreen provision” or other similar automatic renewal provisions), without the written
consent of each Lender directly affected thereby;



     (d) change or waive any provision of Section 2.14, any other provision of this Agreement or
any other Credit Document requiring pro rata treatment of any Lenders, or this Section 11.5 without
the consent of each Lender;



     (e) release the Guarantor from its guarantee obligations under Article XII without the written
consent of each Lender;



     (f) change the percentage in the definition of the term “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; and provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent;



     (g) amend, modify or waive any condition precedent to any Borrowing of Loans set forth in
Section 4.2 (including in connection with any waiver of an existing Default or Event of Default)
without the consent of the Required Lenders;



     (h) unless agreed to by the Fronting Banks, the L/C Agent or the Administrative Agent in
addition to the Lenders required as provided hereinabove to take such action, affect the respective
rights or obligations of the Fronting Banks, the L/C Agent or the Administrative Agent, as
applicable, hereunder or under any of the other Credit Documents.



     Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



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     Section 11.6 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 no
Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of Section 11.6(b), (ii) by way of participation in accordance with
the provisions of Section 11.6(d) or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of Section 11.6(f) (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in Section 11.6(d) and, to the
extent expressly set forth herein, the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Any Lender may, and, if demanded by Holdings pursuant to Section 2.18, shall at any time
assign to one or more Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and Credit Extensions (including for
purposes of this Section 11.6(b), participations in Participated Letters of Credit) at the time
owing to it); provided that:




     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Credit Extensions at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Credit Extensions of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000,
unless each of the Administrative Agent and, so long as no Default or Event of Default has
occurred and is continuing, Holdings otherwise consents (each such consent not to be
unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Credit Extensions and its Commitment so assigned;




     (iii) any such assignment must be approved by the Administrative Agent and the Fronting
Banks and (so long as no Default or Event of Default has occurred and is continuing)
Holdings, each such consent not to be unreasonably withheld or delayed, unless the Person
that is the proposed assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and



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     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
for each assignment and the Eligible Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section
11.6(c), from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Section 2.15(a), Section 2.15(b), Section 2.16, Section 2.17 and
Section 11.1 (and subject to the obligations thereof) with respect to facts and circumstances
occurring prior to the effective date of such assignment; PROVIDED, HOWEVER, THAT
NO LENDER MAY ASSIGN ANY OBLIGATION UNDER A SYNDICATED LETTER OF CREDIT UNLESS SUCH SYNDICATED
LETTER OF CREDIT IS EITHER AMENDED OR RETURNED BY THE BENEFICIARY AND REISSUED BY THE
ADMINISTRATIVE AGENT, REMOVING OR AMENDING, AS THE CASE MAY BE, THE ASSIGNING LENDER’S PERCENTAGE
OBLIGATIONS AND REPLACING OR AMENDING THE SAME WITH A PERCENTAGE OBLIGATIONS OF THE ELIGIBLE
ASSIGNEE. If requested by or on behalf of the Eligible Assignee, each Borrower, at its own
expense, will execute and deliver to the Administrative Agent a new Note or Notes to the order of
the Eligible Assignee (and, if the assigning Lender has retained any portion of its rights and
obligations hereunder, to the order of the assigning Lender), as necessary to reflect, after giving
effect to the assignment, the Commitments and/or outstanding Loans, as the case may be, of the
Eligible Assignee and (to the extent of any retained interests) the assigning Lender. Any
assigning Lender who has requested a Note will return cancelled Notes to the applicable Borrower
upon such assignment. At the time of each assignment pursuant to this Section 11.6 to a Lender not
already a Lender hereunder, such Lender shall provide to the applicable Borrowers and the
Administrative Agent such documentation required pursuant to Section 2.16(e) hereof. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 11.6(b) 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 Section 11.6(d).




     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at its address for notices referred to in Schedule 1.1(a) a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the Borrowers and the Fronting Banks, at any
reasonable time and from time to time upon reasonable prior notice.



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     (d) Any Lender may at any time, without the consent of, or notice to, any Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person or a Borrower
or any Affiliates or Subsidiaries of a Borrower) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion
of its Commitments and/or the Credit Extensions (including such Lender’s participations
in Participated Letters of Credit) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent and the Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, waiver or other modification described in Section 11.5(a), Section 11.5(b), Section
11.5(c) or Section 11.5(d), that affects such Participant. Subject to Section 11.6(e), the
Borrowers agree that each Participant shall be entitled to the benefits of Section 2.15(a), Section
2.15(b), Section 2.16, Section 2.17 or Section 9.3 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 11.6(b).



     (e) A Participant shall not be entitled to receive any greater payment under Section 2.15(a),
Section 2.15(b) or Section 2.16 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 prior written consent of Holdings; provided, however,
that such consent shall be deemed withheld if, in connection with seeking the consent of Holdings,
such Participant fails to provide Holdings with a calculation of the amount of any such greater
payment under Section 2.15(a), Section 2.15(b) or Section 2.16 it would be entitled to receive as
of the date of the sale of such participation. A Participant shall not be entitled to the benefits
of Section 2.16 unless Holdings is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 2.16(e) as though it
were a Lender, and Section 2.16(e) shall be read accordingly.



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



     (g) The words “execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act or any state laws based on the Uniform Electronic
Transactions Act.



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     (h) Any Lender or Participant may, in connection with any assignment, participation, pledge or
proposed assignment, participation or pledge pursuant to this Section 11.6, disclose to the
Eligible Assignee, Participant or pledgee or proposed Eligible Assignee, Participant or pledgee any
information relating to Holdings and its Subsidiaries furnished to it by or on behalf of any other
party hereto, provided that such Eligible Assignee, Participant or pledgee or
proposed Eligible Assignee, Participant or pledgee agrees in writing to keep such information
confidential to the same extent required of the Lenders under Section 11.11.



     (i) Notwithstanding anything to the contrary contained herein, if any Fronting Bank and/or the
L/C Agent assigns all of its Commitments and Credit Extensions in accordance with this Section
11.6, such Fronting Bank and/or L/C Agent may upon at least 20 Business Days’ notice to Holdings,
and shall upon written notice received from Holdings, resign, respectively, as a Fronting Bank
and/or L/C Agent upon written notice to Holdings and the Lenders or the receipt of such written
notice from Holdings. Upon any such written request or notice of resignation, Holdings shall have
the right to appoint from among the Lenders a successor Fronting Bank and/or L/C Agent (subject to
the acceptance by the Lender which will be the successor Fronting Bank and/or L/C Agent);
provided that no failure by Holdings to make such appointment shall affect the resignation
of such Fronting Bank and/or the L/C Agent. Such Fronting Bank and L/C Agent shall retain all of
the rights and obligations of a Fronting Bank hereunder with respect to all Letters of Credit
issued by it and outstanding as of the effective date of its resignation and all obligations of the
Borrowers and the Lenders with respect thereto (including the right to require the Lenders to fund
participation interests pursuant to Article III).



     Section 11.7 No Waiver. The rights and remedies of the Administrative Agent and the
Lenders expressly set forth in this Agreement and the other Credit Documents are cumulative and in
addition to, and not exclusive of, all other rights and remedies available at law, in equity or
otherwise. No failure or delay on the part of the Administrative Agent or any Lender in exercising
any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further exercise thereof or the
exercise of any other right, power or privilege or be construed to be a waiver of any Default or
Event of Default. No course of dealing between any Borrower, the Administrative Agent or the
Lenders or their agents or employees shall be effective to amend, modify or discharge any provision
of this Agreement or any other Credit Document or to constitute a waiver of any Default or Event of
Default. No notice to or demand upon any Borrower in any case shall entitle any Borrower to any
other or further notice or demand in similar or other circumstances or constitute a waiver of the
right of the Administrative Agent or any Lender to exercise any right or remedy or take any other
or further action in any circumstances without notice or demand.



     Section 11.8 Survival. All representations, warranties and agreements made by or on
behalf of any Borrower in this Agreement and in the other Credit Documents shall survive the
execution and delivery hereof or thereof, the making and repayment of the Loans and the Issuance
and repayment of the Letters of Credit. In addition, notwithstanding anything herein to the
contrary, the provisions of this Agreement and the other Credit Documents relating to
indemnification or payment of costs and expenses, including the provisions of Section 2.15(a),
Section 2.15(b), Section 2.16, Section 2.17, and Section 11.1, shall survive the payment in full of
all Credit Extensions, the termination of the Commitments and all Letters of Credit, and any
termination of this Agreement or any of the other Credit Documents.



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     Section 11.9 Severability. To the extent any provision of this Agreement is
prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be
ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction,
without prohibiting or invalidating such provision in any other jurisdiction or the remaining
provisions of this Agreement in any jurisdiction.



     Section 11.10 Construction. The headings of the various articles, sections and
subsections of this Agreement and the table of contents have been inserted for convenience only and
shall not in any way affect the meaning or construction of any of the provisions hereof. Except as
otherwise expressly provided herein and in the other Credit Documents, in the event of any
inconsistency or conflict between any provision of this Agreement and any provision of any of the
other Credit Documents, the provision of this Agreement shall control.



     Section 11.11 Confidentiality.



     (a) Each of the Administrative Agent, the L/C Agent, the Lenders and the Fronting Banks
acknowledges that the Borrowers consider the Information (as defined below) to include
confidential, sensitive and proprietary information and agrees that it shall use reasonable
precautions in accordance with its established procedures to keep the Information confidential;
provided, however that (i) it may make any disclosure of such Information to which
any Borrower gives its prior written consent, (ii) it may make any disclosure of such Information
to any other party hereto, (iii) it may make any disclosure of such Information in connection with
the exercise of any remedies hereunder or under any other Credit Document or any action or
proceeding relating to this Agreement or any other Credit Document or the enforcement of rights
hereunder or thereunder, (iii) any of such Information may be disclosed to it, its affiliates and
their respective partners, directors, officers, employees, agents, advisors and other
representatives (collectively, “Representatives”) (it being understood that such
Representatives shall be informed by it of the confidential nature of such Information and shall be
directed to treat such information in accordance with the terms hereof) and (iv) subject to an
agreement containing provisions substantially the same as those of this Section, it may make any
disclosure of such Information to (x) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (y) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations. Each of the Administrative Agent, the L/C Agent, the Lenders
and the Fronting Banks agrees to be responsible for any breach of this Section 11.11 that results
from the actions or omissions of its Representatives.



     (b) Each of the Administrative Agent, the L/C Agent, the Lenders and the Fronting Banks shall
be permitted to disclose any Information in the event that it is required by law or regulation or
requested by any Governmental Authority or other Insurance Regulatory Authority (including any
self-regulatory organization) or in connection with any legal proceedings; provided that
(i) it agrees that it will promptly notify Holdings as soon as practical in the event of any such
disclosure request (other than at the request of a regulatory authority), unless such
notification shall be prohibited by applicable law or legal process and (ii) it agrees to
provide reasonable assistance to any Borrowers should such Borrower seek a protective order or
other relief to prevent or limit such disclosure or to obtain confidential treatment for any
Information so disclosed.



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     (c) Each of the Administrative Agent, the L/C Agent, the Lenders and the Fronting Banks shall
have no obligation hereunder with respect to any Information to the extent that such information
(i) is or becomes generally available to the public other than as a result of a disclosure by the
Administrative Agent, the L/C Agent, the Lenders and the Fronting Banks or a Representative thereof
in violation of this Agreement, or (ii) was within its possession prior to its being furnished to
it by or on behalf of the Borrowers in connection with this Agreement or the Secured Facility or
becomes available to it on a non-confidential basis from a source other than a Borrower or its
agents, provided that the source of such information was not known by it to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary obligation of
confidentiality to any Borrower or any other party with respect to such Information.


For purposes of this Section, “Information” means all non-public information received from
the Borrowers relating to any Borrower or any of their respective businesses, other than any such
information that is available to the Administrative Agent, the L/C Agent, any Lender or any
Fronting Bank on a nonconfidential basis prior to disclosure by any Borrower.




     Section 11.12 Judgment Currency. If, for the purposes of obtaining judgment in any
court or in respect of any tender made by any Borrower, it is necessary to convert a sum due
hereunder or under any other Credit Document in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given or such tender is made. The obligation of any
Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder
or under the other Credit Documents shall, notwithstanding any tender or judgment in a currency
(the “Judgment Currency”) other than that in which such sum is denominated in accordance
with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged
only to the extent that on the Business Day following receipt by the Administrative Agent or such
Lender of any sum received or adjudged to be so due in the Judgment Currency, the Administrative
Agent or such Lender may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent or such Lender in the Agreement Currency,
the applicable Borrower agrees, as a separate obligation and notwithstanding any such judgment or
tender, to indemnify the Administrative Agent or such Lender or the Person to whom such obligation
was owing against such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Administrative Agent or such Lender in such currency, the
Administrative Agent or such Lender agrees to return the amount of any excess to the applicable
Borrower (or to any other Person who may be entitled thereto under applicable law).



     Section 11.13 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement and the other Credit Documents
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 4.1, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts



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hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement.



     Section 11.14 Disclosure of Information. The Borrowers agree and consent to the
Administrative Agent’s and the Joint Arrangers’ disclosure of information relating to this
transaction to Gold Sheets and other similar bank trade publications. Such information
will consist of deal terms and other information customarily found in such publications.



     Section 11.15 USA PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers
that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record
information that identifies each Borrower, which information includes the names and addresses of
the Borrowers and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the PATRIOT Act.



ARTICLE XII




THE GUARANTY




     Section 12.1 The Guaranty.



     (a) In order to induce the Lenders to enter into this Agreement and to extend credit hereunder
and in recognition of the direct benefits to be received by the Guarantor from the proceeds of the
Loans and the issuance of the Letters of Credit, the Guarantor hereby unconditionally, absolutely
and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual
payment (whether at stated maturity, upon acceleration or otherwise) of all Obligations of Allied
World under the Credit Documents including the principal of and interest on the Loans and
Reimbursement Obligations owing by Allied World pursuant to this Agreement. This Guaranty is a
guaranty of payment and not of collection.



     Section 12.2
Guaranty Unconditional.
The obligations of the Guarantor under this Article XII shall be unconditional, absolute
and irrevocable and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:




     (i) any extension, renewal, settlement, compromise, waiver or release in respect of any
obligation of any other obligor under any of the Credit Documents, by operation of law or
otherwise;




     (ii) any modification or amendment of or supplement to any of the Credit Documents;




     (iii) any release, non-perfection or invalidity of any direct or indirect security for
any obligation of any other obligor under any of the Credit Documents;



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     (iv) any change in the corporate existence, structure or ownership of any obligor, or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other
obligor or its assets or any resulting release or discharge of any obligation of any other
obligor contained in any of the Credit Documents;




     (v) the existence of any claim, set-off or other rights which any obligor may have at
any time against any other obligor, the Administrative Agent, the L/C Agent, any Fronting
Bank, any Lender or any other corporation or person, whether in connection with any of the
Credit Documents or any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory counterclaim;




     (vi) any invalidity or unenforceability relating to or against any other obligor for
any reason of any of the Credit Documents, or any provision of applicable law or regulation
purporting to prohibit the payment by any other obligor of principal, interest or any other
amount payable under any of the Credit Documents;




     (vii) any law, regulation or order of any jurisdiction, or any other event, affecting
any term of any obligation of the Lenders’ rights with respect thereto; or




     (viii) any other act or omission to act or delay of any kind by any obligor, the
Administrative Agent, any Fronting Bank, any Lender or any other corporation or person or
any other circumstance whatsoever (other than the defense of payment) which might, but for
the provisions of this paragraph, constitute a legal or equitable discharge of or defense to
the Guarantor’s obligations under this Article XII.



     Section 12.3 Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances. The Guarantor’s obligations under this Article XII shall remain in full force
and effect until the Commitments of the Lenders hereunder shall have terminated, no Letters of
Credit shall be outstanding and all Obligations payable by Allied World under the Credit Documents
shall have been paid in full. If at any time any payment of the principal of or interest on any
Loan or any Reimbursement Obligation or any Obligation payable by Allied World under the Credit
Documents is rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of Allied World or otherwise, the Guarantor’s obligations under this
Article XII with respect to such payment shall be reinstated as though such payment had been due
but not made at such time.



     Section 12.4 Waiver by the Guarantor. The Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any corporation or person against any other
obligor or any other corporation or person. The Guarantor warrants and agrees that each waiver set
forth in this Section 12.4 is made with full knowledge of its significance and consequences, and
such waivers shall be effective to the maximum extent permitted by law.



     Section 12.5 Subrogation. The Guarantor hereby unconditionally and irrevocably agrees
not to exercise any rights that it may now have or hereafter acquire against Allied World, or any
other guarantor that arise from the existence, payment, performance or enforcement of the



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Guarantor’s obligations under or in respect of this Article XII or any other Credit Document,
including any right of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of any Lender against Allied World or any other
guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute
or common law, including the right to take or receive from Allied World or any other guarantor,
directly or indirectly, in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, unless and until all Obligations payable under
this Agreement shall have been paid in full in cash, no Letters of Credit shall be outstanding and
the Commitments of the Lenders hereunder shall have expired or been terminated. If any amount
shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of all amounts payable under this Article XII, and
(b) the Final Expiry Date, such amount shall be received and held in trust for the benefit of the
Lenders, shall be segregated from other property and funds of the Guarantor and shall forthwith be
paid or delivered to the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to all amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Credit Documents, or to be held
as collateral for any amounts payable under this Article XII thereafter arising. If (i) the
Guarantor shall make payment to any Lender of all or any amounts payable under this Article XII,
(ii) all amounts payable under this Article XII shall have been paid in full in cash, and (iii) the
Final Expiry Date shall have occurred, the Lenders will, at the Guarantor’s request and expense,
execute and deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the obligations resulting from such payment made by the Guarantor pursuant to this
Article XII.



     Section 12.6
Stay of Acceleration.
If acceleration of the time for payment of any amount payable by Allied World under any of
the Credit Documents is stayed upon the insolvency, bankruptcy or reorganization of Allied World,
all such amounts otherwise subject to acceleration under the terms of this Agreement shall
nonetheless be payable by the Guarantor under this Article XII forthwith on demand by the
Administrative Agent made at the request of the Required Lenders.



     Section 12.7 Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until the later of (i) the payment in full in cash of
all Obligations payable under this Agreement and (ii) the Final Expiry Date, (b) be binding upon
the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the
Lenders and their successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Lender may assign or otherwise transfer all or any
portion of its rights and obligations under this Agreement to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise, in each case as and to the extent provided in Section 11.6(b).



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



	 	 	 	 	 	 	 
	 	 	ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joan H. Dillard	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Joan H. Dillard	 	 
	 

	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Marchelle D. Lewis	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Marchelle D. Lewis	 	 
	 

	 	Title:
	 	Vice President and Treasurer	 	 






	 	 	 	 	 	 	 
	 	 	ALLIED WORLD ASSURANCE COMPANY, LTD	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joan H. Dillard	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Joan H. Dillard	 	 
	 

	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Marchelle D. Lewis	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Marchelle D. Lewis	 	 
	 

	 	Title:
	 	Vice President and Treasurer	 	 






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	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, the L/C Agent, a Fronting Bank and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William R. Goley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	William R. Goley	 	 
	 

	 	Title:
	 	Director	 	 






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	 	 	BANK OF AMERICA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Debra Basler	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Debra Basler	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






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	 	 	BARCLAYS BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Nicholas Bell	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Nicholas Bell	 	 
	 

	 	Title:
	 	 Director	 	 






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

	 	By:
	 	/s/ N J Marchant	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	N J Marchant	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ M E R Sharman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	M E R Sharman	 	 
	 

	 	Title:
	 	Director	 	 






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	 	 	CALYON NEW YORK BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sebastian Rocco	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Sebastian Rocco	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Charles Kornberger	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Charles Kornberger	 	 
	 

	 	Title:
	 	Managing Director	 	 






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	 	 	J.P. MORGAN CHASE BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Melvin D. Jackson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Melvin D. Jackson	 	 
	 

	 	Title:
	 	Vice President	 	 






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	 	 	SUNTRUST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Bradley Hamilton	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	W. Bradley Hamilton	 	 
	 

	 	Title:
	 	Director	 	 






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	 	 	THE BANK OF NEW YORK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Pensari	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Michael Pensari	 	 
	 

	 	Title:
	 	V.P.	 	 






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	 	 	BANK OF N.T. BUTTERFIELD & SON LTD, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Alan Day	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Alan Day	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Curtis Ballantyne	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Curtis Ballantyne	 	 
	 

	 	Title:
	 	Vice President	 	 






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	 	 	THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Padraig Rushe	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Padraig Rushe	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kieran Rockett	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kieran Rockett	 	 
	 

	 	Title:
	 	Senior Manager	 	 






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	 	 	COMERICA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chatphet Saipetch	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	Chatphet Saipetch

Vice President	 	 






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	 	 	LLOYDS TSB BANK PLC, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jason Eperon	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jason Eperon	 	 
	 

	 	Title:
	 	Director, Financial Institutions, USA E004	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Candi Obrentz	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Candi Obrentz	 	 
	 

	 	Title:
	 	Associate Director, Financial Institutions, USA 0013	 	 






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	 	 	 	 	LEHMAN COMMERCIAL PAPER INC., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rohit Nair	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Rohit Nair	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 






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