Exhibit 10.38
EXECUTION COPY
180-DAY BRIDGE
CREDIT AGREEMENT
dated as of
April 30, 2004
Among
GENWORTH FINANCIAL, INC.,
as Borrower,
And
The Lenders Party Hereto
$2,400,000,000 BRIDGE FACILITY
Citigroup Global Markets Inc., Deutsche Bank
Securities Inc. and Lehman Brothers Inc.,
as Joint Lead Arrangers and Book Managers
TABLE OF CONTENTS
ii
SCHEDULES:
Schedule 2.01
— Commitments
EXHIBITS:
Exhibit A — Form of Assignment and Acceptance
Exhibit B — Form of Opinion of Borrower’s In-House Counsel
iii
CREDIT AGREEMENT (this “Agreement”), dated as of April 30,
2004, among GENWORTH FINANCIAL, INC. (the “Borrower”), the Lenders party
hereto and Citicorp North America, Inc., as Administrative Agent.
The parties hereto agree
as follows:
SECTION 1.01. Defined
Terms. As used in this Agreement,
the following terms have the meanings specified below:
“Administrative Agent” means Citicorp North America, Inc., in
its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative
Questionnaire in a form supplied 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.
“Applicable Margin” means, for any day, with respect to any
Eurodollar Loan, the applicable rate per annum set forth in the table below
under the caption “Eurodollar Loan Spread”:
|
Eurodollar Loan
Spread
|
|
0.30 of 1%
(30 basis points)
|
“Assignment and Acceptance” means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 7.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
“Board” means the Board of Governors of the Federal Reserve
System of the United States of America (or any successor).
“Borrower” has the meaning specified in the recital of parties
to this Agreement.
“Borrowing” means Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
“Borrowing Request” means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
“Business Day” means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that,
the term “Business Day” shall also exclude when used in
connection with a Eurodollar Loan, any day on which banks are not open for dealings
in Dollar deposits in the London and New York interbank markets.
“Change
in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) (other than General
Electric Company and its subsidiaries) of shares representing more than 50% of
the issued and outstanding shares of common stock of the Borrower; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the
board of directors of the Borrower or by General Electric Company and its subsidiaries
nor (ii) appointed by directors so nominated.
“Code” means the Internal Revenue Code of 1986, as amended from
time to time.
“Commitment” means, with respect to each Lender, the commitment
of such Lender to make Loans hereunder, as set forth on Schedule 2.01.
“Control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Credit Exposure” means, with respect to any Lender at any time,
the outstanding principal amount of such Lender’s Loans at such time.
“Default” means any event or condition which upon notice, lapse
of time or both would, unless cured or waived, become an Event of Default.
“Dollars” or “$” refers to lawful money of the United
States of America.
“Effective Date” means the date on which the conditions
specified in Article IV are satisfied (or waived in accordance with
Section 7.02).
“Eurodollar” means, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Eurodollar Rate.
“Eurodollar Rate” means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on page 3750 of the
Telerate Service (or on any successor or substitute page of the Telerate
Service, or any successor to or substitute for the Telerate Service, providing
rate quotations comparable to those currently provided on such page of the
Telerate Service, as determined by the Administrative Agent from time to time
for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for Dollar deposits with a maturity comparable to such Interest
Period.
“Event of Default” has the meaning assigned to such term in
Article V.
“Excluded Taxes” means, with respect to the Administrative
Agent, any Lender, or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its
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principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any jurisdiction
described in clause (a) above and (c) in the case of any Lender, any
withholding tax that is imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement or is attributable to such
Lender’s failure or inability to comply with Section 2.13(e), except to
the extent that such Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.13(a).
“Federal Funds Effective Rate” means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day
for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
“Firm
Public Offering Shares” means the class A common stock to be sold in the
Borrower’s initial public offering, other than class A common stock sold as a
result of exercise of any over-allotment option by the underwriters of such initial public offering,
and the series A preferred stock sold in a concurrent offering.
“GAAP” means generally accepted accounting principles in the
United States of America.
“Governmental Authority” means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments and (c) all guarantees by such Person
of Indebtedness of others (it being understood and agreed, for the avoidance of
doubt, that (i) annuities, guaranteed investment contracts, funding agreements and
similar instruments and agreements and (ii) insurance products created or
entered into in the normal course of business shall not constitute
“Indebtedness”)
“Indemnified Taxes” means Taxes (other than Excluded Taxes) that
are required by applicable law to be withheld or deducted from a payment by, or
on account of an obligation of, the Borrower hereunder.
“Indemnitee” has the meaning given to it in
Section 7.03(b).
“Interest Election Request” means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
“Interest Payment Date” means (a) with respect to any Prime
Loan, the last day of each March, June, September and December and
(b) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part.
“Interest Period” means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending one
or two weeks or on the numerically
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corresponding day in the calendar month that is one month thereafter,
as the Borrower may elect; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a one month
Interest Period, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period of one month that commences
on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
“Lead Arrangers” means Citigroup Global Markets Inc., Deutsche
Bank Securities Inc. and Lehman Brothers Inc.
“Lenders” means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
“Loan” has the meaning given to it in Section 2.01(a).
“Local Time” means New York City time.
“Master
Agreement Closing Date” means the date on which the underwriting agreements
relating to the Borrower’s initial public offering are executed and delivered
by each of the parties thereto (or such other date as General Electric Company
and the Borrower may mutually agree upon in writing).
“Material Adverse Effect” means a material adverse effect on (a)
the business, property, operations or financial condition of the Borrower and
its Subsidiaries taken as a whole or (b) the validity or enforceability of
this Agreement or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
“Maturity Date” means the date that is six months after the
Effective Date.
“Other Taxes” means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement.
“Person” means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
“Prime”, when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Prime Rate.
“Prime Rate” means the rate of interest per annum publicly
announced from time to time by Citibank, N.A. as its base rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
“Register” has the meaning set forth in Section 7.04.
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“Registration
Statement” means the Borrower’s Registration Statement on Form S-1
(Registration Number 333-112009) filed with the Securities and Exchange
Commission on January 20, 2004, as amended through the date hereof.
“Regulation U” means Regulation U of the Board as in effect from
time to time.
“Related Parties” means, with respect to any specified Person,
such Person’s Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person’s Affiliates.
“Required Lenders” means, at any time, Lenders having Credit
Exposures representing more than 50% of the sum of the total Credit Exposures
at such time.
“subsidiary” means, with respect to any Person at any date, any
corporation, limited liability company, partnership, association or other
entity of which the securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other body
performing similar functions are at such date directly or indirectly owned by
such Person.
“Subsidiary” means any subsidiary of the Borrower.
“Taxes” means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
“Transactions” means the execution, delivery and performance by
the Borrower of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
“Type”, when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Eurodollar Rate or the Prime Rate.
SECTION 1.02. Classification
of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Type (e.g.,
“Eurodollar Loans”). Borrowings also
may be classified and referred to by Type (e.g., “a Eurodollar
Borrowing”).
SECTION 1.03. Terms
Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a)
any reference herein to any Person shall be construed to include such Person’s
successors and permitted assigns, (b) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof and (c)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement.
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make a loan (each, a “Loan”) in
Dollars to the Borrower on any Business Day on or
5
after the
Effective Date and before June 11, 2004 in a principal amount not
exceeding such Lender’s Commitment.
Amounts borrowed under this Section 2.01 and repaid or prepaid may
not be reborrowed. The Loans shall in
each case be Prime Loans or Eurodollar Loans, as the Borrower shall request.
SECTION 2.02. Loans
and Borrowings. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments. Subject
to Section 2.11, each Borrowing shall be comprised entirely of Prime Loans
or Eurodollar Loans as the Borrower may request in accordance herewith.
(b) The failure of any Lender
to make the Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender’s failure to make a Loan as
required.
(c) Each Lender at its option
may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(d) At the commencement of each
Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $5,000,000 and not less than
(x) $25,000,000 for Eurodollar Borrowings.
At the time that each Prime Borrowing is made, such Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $10,000,000; provided that a Prime Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total
Commitments. Borrowings of more than
one Type may be outstanding at the same time; provided that there shall
not at any time be more than a total of five Eurodollar Borrowings.
(e) Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request, or
to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Requests
for Borrowings. To request a
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00
a.m., Local Time, three Business Days before the date of the proposed Borrowing
or (b) in the case of a Prime Borrowing, not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be a Prime Borrowing or a Eurodollar Borrowing;
(iv) in
the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.04.
6
If no election as to the Type of Borrowing is specified, the Borrower
shall be deemed to have selected a Eurodollar Borrowing with an Interest Period
of one week’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding
of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, Local Time, to the account of the
Administrative Agent designated by it for such purpose by notice to the
Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent and designated by the Borrower in the applicable Borrowing
Request.
(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 share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance
with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then (x) the Administrative Agent shall notify the Borrower of such
inaction promptly following the Administrative Agent’s discovery of such
inaction and (y) the applicable Lender and the 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 the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate
applicable to such Borrowing. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.
SECTION 2.05. Interest
Elections. (a) Each Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders, and the Loans comprising each
such portion shall be considered a separate Borrowing.
(b) To make an election
pursuant to this Section, the Borrower shall notify the Administrative Agent of
such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written
Interest Election Request shall specify the following information in compliance
with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be
7
allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be a Prime Borrowing or a Eurodollar Borrowing;
and
(iv) if
the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one [week’s] duration.
(d) Promptly following receipt
of an Interest Election Request, the Administrative Agent shall advise each
Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If the Borrower fails to
deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be continued with an Interest Period of one
[week’s] duration.
SECTION 2.07. Repayment of
Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises
to pay to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Loan on the Maturity Date.
(b) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(c) The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the
accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure
of any Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans to it in accordance with the terms of this Agreement.
(e) Any Lender may reasonably
request that Loans made by it to the Borrower be evidenced by a promissory
note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent and the
Borrower.
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Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 7.04) be represented
by one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.08. Prepayment
of Loans. (a) Subject to prior notice in accordance with
paragraph (b) of this Section, the Borrower may at its option, at any time,
without premium or penalty of any kind (other than any payments required under
Section 2.16), prepay, in whole or in part, any Borrowings.
(b) The Borrower shall notify
the Administrative Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 11:00 a.m., Local Time, on the date three Business Days prior to the date
of prepayment or (ii) in the case of prepayment of a Prime Borrowing, not
later than 10:00 a.m., Local Time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid. Promptly
following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.10.
(c) The Borrower shall,
promptly after receipt of net cash proceeds by the Borrower from the issuance
or incurrence of any Indebtedness by the Borrower or any Subsidiary (other than
Indebtedness (i) owed to a wholly owned Subsidiary or to the Borrower, (ii)
Indebtedness arising under senior credit facilities of the Borrower in the
aggregate amount of $2,000,000,000 and (iii) Indebtedness issued or incurred in
the ordinary course of business, maturing within one year from the date
incurred, evidenced by commercial paper and aggregating at any time not more
than $50,000,000 at any time outstanding) prepay an aggregate principal amount
of the Loans comprising part of the same Borrowing in an amount equal to the
amount of such net cash proceeds.
SECTION 2.10. Interest. (a)
The Loans comprising each Prime Borrowing shall bear interest at a
rate per annum equal to the Prime Rate.
(b) The Loans comprising each
Eurodollar Borrowing shall bear interest at a rate per annum equal to the
Eurodollar Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin.
(c) Accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided
that (i) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (ii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion and (iii) all accrued interest on a Loan shall be payable upon the
Maturity Date and, if later, on the date such Loan is paid in full.
(d) All interest hereunder
shall be computed on the basis of a year of 360 days, except that interest
computed by reference to the Prime Rate shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable
Prime Rate or Eurodollar Rate, shall
9
be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.11. Alternate
Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period; or
(b) the Administrative Agent is
advised by the Required Lenders that the Eurodollar Rate for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower
and the Lender or Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Borrowing to,
or continuation of any Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as a Prime Borrowing; provided that if the
circumstances giving rise to such notice affect fewer than all Types of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.12. Increased
Costs. In the event that by reason
of any change after the date of this Agreement in applicable law or regulation
or in the interpretation thereof by any Governmental Authority charged with the
administration, application or interpretation thereof, or by reason of the
adoption or enactment after the date of this Agreement of any requirement or
directive (whether or not having the force of law) of any Governmental
Authority:
(a) any Lender shall, with
respect to this Agreement, be subject to any tax, levy, impost, charge, fee,
duty, deduction or withholding of any kind whatsoever (other than Excluded
Taxes); or
(b) any change shall occur in
the taxation of any Lender with respect to the principal or interest payable
under this Agreement (other than the imposition of any Excluded Taxes or any
change which affects solely the taxation of the total income of such Lender);
or
(c) any reserve or similar
requirements should be imposed on either the commitments to lend or the foreign
claims of deposits of any Lender;
and if any of the
above-mentioned measures shall result in a material increase in the cost to
such Lender of making or maintaining its Loans or a material reduction in the
amount of principal or interest received or receivable by such Lender in
respect thereof, then upon prompt written notification (which shall include the
date of effectiveness of such change, adoption or enactment) and demand being
made by such Lender for such additional cost or reduction, the Borrower shall
pay to such Lender, within 30 days of such demand being made by such Lender,
such additional cost or reduction; provided, however, that the
Borrower shall not be responsible for any such cost or reduction that may
accrue to such Lender with respect to the period between the occurrence of the
event which gave rise to such cost or reduction and the date on which
notification is given by such Lender to the Borrower; and provided,
further, that the Borrower shall not be obligated to pay such Lender any
such additional cost or reduction unless such Lender certifies to the Borrower
that at such time such Lender shall be generally assessing such amounts on a
non-discriminatory basis against borrowers under agreements having provisions
similar to this
10
Section; and provided,
further, that any such additional cost or reduction allocated to any
Loan shall not exceed the Borrower’s pro rata share of all costs attributable
to all loans or advances or commitments to all borrowers by such Lender that
collectively result in the consequences for which such Lender is to be
compensated by the Borrower. Within 30 days of receipt of such notification,
the Borrower will pay such additional costs as may be applicable to the period
subsequent to notification or prepay in full all Loans to it outstanding under
this Agreement so affected by such additional costs, together with interest and
fees accrued thereon to the date of prepayment in full. Such Lender shall use reasonable efforts
(consistent with its internal policy applied on a non-discriminatory basis and
legal and regulatory restrictions) to designate a different applicable lending
office for the Loans made by it or to take other appropriate actions if such
designation or actions, as the case may be, will avoid the need for, or reduce
the amount of, any increased costs to the Borrower incurred under this Section,
and will not, in the opinion of such Lender, be otherwise disadvantageous to
such Lender.
SECTION 2.13. Taxes. (a)
Any and all payments by or on account of any obligation of the Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) The Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority; provided, however,
that no such additional amount shall be required to be paid to the
Administrative Agent or any Lender under this clause (c) except to the extent
that any change after the date on which such Lender became a Lender in any requirement
for a deduction, withholding or payment shall result in an increase in the rate
of such deduction, withholding or payment from that in effect on the date on
which such Lender became a Lender. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the 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) The Administrative Agent or
any Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation
11
prescribed by
applicable law as will permit such payments to be made without withholding or
at a reduced rate.
(f) Each
Lender and the Administrative Agent shall use reasonable efforts (consistent)
with its internal policy applied on a non-discriminatory basis and legal and
regulatory restrictions) to designate a different applicable lending office for the Loans made by it or
to take other appropriate actions if such designation or actions, as the case
may be, will avoid the need for, or reduce the amount of, any payments the
Borrower is required to make under this Section 2.13, and will not, in the
opinion of such Lender or the Administrative Agent, be otherwise
disadvantageous to such Lender or the Administrative Agent.
SECTION 2.14. Payments
Generally. (a) Unless otherwise specified herein, the
Borrower shall make each payment required to be made by it hereunder (including
under Section 2.12, 2.13, 2.16, or otherwise) prior to 12:00 noon, Local
Time, on the date when due and in immediately available funds, without set-off
or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at its
offices at 388 Greenwich Street, New York, New York or at such other office in
the United States of America as directed by the Administrative Agent, except
that payments pursuant to Sections 2.12, 2.13, 2.16 and 7.03 shall be made
directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All
payments hereunder shall be made in Dollars.
(b) If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by
exercising any right of counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the extent
necessary so that the benefit of all such payments made shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of counterclaim with
respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.
12
(d) Unless the Administrative
Agent shall have received notice from the Borrower prior to the date on which
any payment from the Borrower is due to the Administrative Agent for the
account of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due.
In such event, if the Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Federal Funds Effective Rate.
(e) If any Lender shall fail to
make any payment required to be made by it pursuant to Section 2.04(b) or
2.14(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.
SECTION 2.15. Mitigation
Obligations; Replacement of Lenders.
If any Lender requests compensation, or is entitled to payments, under
Section 2.12 or 2.13 or is affected in the manner described in Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort (in the case of a claim for
compensation under, or payments pursuant to, Section 2.12 or 2.13 or in
the case of illegality under Section 2.17) or at the expense and effort of
any such defaulting Lender, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in
Section 7.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld or
delayed, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under, or payments pursuant
to, Section 2.12 or 2.13 or from illegality under Section 2.17, such
assignment will result in a reduction in such compensation or payments or
eliminate the illegality, as the case may be.
A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
SECTION 2.16. Break
Funding Payments. In the event of
(a) the payment of any principal of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.08(b) and is revoked in
accordance herewith), or (d) the assignment of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.15, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case
of a Eurodollar Loan, the loss to any Lender attributable to any such event
shall be deemed to include an amount reasonably determined by such Lender to be
equal to the excess, if any, of (i) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan for
the period from the date of such payment, conversion, failure or assignment to
the last day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, convert or continue, the duration of
13
the Interest
Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Eurodollar Rate for such Interest Period, over (ii) the amount of interest
(as reasonably determined by such Lender) that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender
(or an affiliate of such Lender) for deposits in Dollars from other banks in
the eurodollar market at the commencement of such period. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 15 days
after receipt thereof.
SECTION 2.17. Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in applicable law or regulation or in the interpretation
or application thereof shall make it unlawful for any Lender to make or
maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment
of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert Prime Loans into Eurodollar Loans shall forthwith be canceled
and (b) such Lender’s Loans then outstanding as Eurodollar Loans, if any, shall
be converted automatically to Prime Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such
conversion or repayment of a Eurodollar Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to
Section 2.16. If circumstances
subsequently change so that any affected Lender shall determine that it is no
longer so affected, such Lender will promptly notify the Borrower and the Administrative
Agent, and upon receipt of such notice, the obligations of such Lender to make
or continue Eurodollar Loans or to convert Prime Loans into Eurodollar Loans
shall be reinstated.
ARTICLE III
REPRESENTATIONS OF BORROWER
The Borrower represents as follows:
(a) The Borrower has been duly
organized and is validly existing and, if applicable, in good standing under
the laws of the jurisdiction of its organization, and the Borrower has all
requisite power and authority to conduct its business, to own its properties
and to execute, deliver and perform its obligations under this Agreement.
(b) The execution, delivery and
performance by the Borrower of this Agreement have been, or prior to the
Effective Date will be, duly authorized by all necessary corporate action and
do not and will not, as of the Effective Date, violate any provision of any law
or regulation, or contractual or corporate restrictions binding on the Borrower
and material to the Borrower and its Subsidiaries, taken as a whole.
(c) As of the Effective Date,
this Agreement constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject however to
(i) the exercise of judicial discretion in accordance with general
principles of equity and (ii) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors’ rights heretofore or
hereafter enacted.
(d) The proceeds of the Loans
made to the Borrower shall not be used for a purpose which violates Regulation U.
14
(e) As of the date hereof, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any Subsidiary or against any of their
respective properties or revenues (i) with respect to this Agreement or any of
the transactions contemplated hereby or (ii) that could reasonably be expected
to have a Material Adverse Effect (other than those litigations, investigations or proceedings
set forth in the Registration Statement).
(f)
(i) The combined statement of financial position of the Borrower and its
combined statements of earnings, stockholder’s interest and cash flows as of
and for the fiscal year ended December 31, 2003 reported on by KPMG LLP,
independent public accountants, and set forth beginning on page F-3 of the
Registration Statement, present fairly (assuming completion of the transactions
described in note 1 to such financial statements), in all material respects,
the financial position and results of operations and cash flows of the Borrower
and its consolidated subsidiaries as of such date and for such period in
accordance with GAAP and (ii) since December 31, 2003 to the date hereof,
other than those developments and events described in the Registration
Statement, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect with respect to the
Borrower and its Subsidiaries taken as a whole.
(g) The
Borrower and each of its Material Subsidiaries is in compliance with all
applicable laws, rules, regulations and orders of, and all applicable
restrictions imposed by, any Governmental Authority applicable to it or its property,
including, without limitation, statutory insurance requirements, except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect with respect to the Borrower and its Subsidiaries taken as a
whole.
The obligations of the
Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 7.02):
(a) The Administrative Agent
(or its counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) The Administrative Agent
shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of in-house
counsel for the Borrower, substantially in the form of Exhibit B. The Borrower hereby requests such counsel to
deliver such opinion.
(c) The Administrative Agent
shall have received such documents and certificates as the Administrative Agent
or its counsel may reasonably request relating to the organization, existence
and, if applicable, good standing of the Borrower, the authorization of the
Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(d) The representations of the
Borrower set forth in Article III of this Agreement shall be true and
correct on and as of the date of such Borrowing.
15
(e) At the time of and
immediately after giving effect to such Borrowing no Default or Event of
Default shall have occurred and be continuing.
(f) The
Borrower shall have delivered the Firm Public Offering Shares to the underwriters
of the Borrower’s initial public offering within four (4) Business Days after
the Master Agreement Closing Date.
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notices shall be conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 7.02) at or prior to 3:00 p.m., New York City time, on
June 11, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
If any of the following events (“Events of Default”) shall
occur:
(a) the Borrower shall fail to
pay when due any principal of any Loan made to it;
(b) the Borrower shall fail to
pay when due any interest on any Loan, and such failure shall not be cured
within five days after receipt by the Borrower of notice of such failure from
the Administrative Agent;
(c) if a default shall occur in
respect of any other Indebtedness of the Borrower in an aggregate principal
amount of $25,000,000 or more and such default causes acceleration thereof;
(d) bankruptcy, reorganization,
insolvency, receivership, or similar proceedings are instituted by or against
the Borrower, and, if instituted against the Borrower, are not vacated within
60 days;
(e) the Borrower makes a
general assignment for the benefit of creditors;
(f) any representation or
warranty made in writing or deemed made by the Borrower in this Agreement, or
in any report, certificate, financial statement or other document delivered
pursuant to this Agreement, shall prove to have been incorrect in any material
respect when made or deemed made;
(g) the Borrower shall fail to
observe or perform any covenant, condition or agreement contained in this
Agreement (other than those specified in clause (a) or (b) of this Article),
and such failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or the Required Lenders to the Borrower;
or
(h) there
shall have occurred
a Change in Control;
then, and in every such event (other than an event described in clause
(d) or (e) of this Article), and at any time thereafter during the continuance
of such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, declare the Loans then outstanding to
be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower
16
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event described in clause (d)
or (e) of this Article, the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VI
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent 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, together with such actions and powers
as are reasonably incidental thereto.
The bank 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 such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein.
Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its subsidiaries that is communicated to or obtained
by the bank serving as 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 with the consent or
at the request of the Required Lenders or all the Lenders, as the case may be,
or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by the Borrower or a Lender, and 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, (ii) the contents of any certificate, report
or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the 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 believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon
any statement made to it orally or by telephone and reasonably believed by it
to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower),
17
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.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers 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
its duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facility provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the written consent of the Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders with the written consent of the Borrower and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 7.03 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.
SECTION 7.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing (including,
subject to the last sentence at the end of this Section 7.01, by
electronic transmission) and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if
to the Borrower, to it at 6620 West Broad Street, Richmond, Virginia 23230, Attention of Treasurer (Telecopy
No. 804-662-7522), with a
copy to Attention of General Counsel (Telecopy No. 804-622-2414);
18
(b) if
to the Administrative Agent, to Citicorp North America, Inc., Two Penns Way,
New Castle, Delaware 19720, Attention Bank Loan Syndications (Telecopy No. 212
994-0961), with copies to Attention of
(Telecopy No. 212 - );
(c) if
to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt. Only notices, requests or demands to or upon the Lenders may be
effected by electronic transmission.
SECTION 7.02. Waivers;
Amendments. Neither this Agreement
nor any provision hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby or (iv) change any
of the provisions of this Section or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided, further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
SECTION 7.03. Expenses;
Indemnity. (a) The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Lead Arrangers, the Administrative Agent
and their respective Affiliates, including the reasonable fees, charges and
disbursements of a single counsel for the Lead Arrangers and the Administrative
Agent, in connection with the syndication of the credit facility provided for
herein, the preparation and administration of this Agreement and any
amendments, modifications or waivers of the provisions hereof and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the reasonable fees, charges and disbursements of any counsel
for the Administrative Agent or any Lender, in connection with the enforcement
of its rights in connection with this Agreement.
(b) The
Borrower shall indemnify the Lead Arrangers, the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or the performance by the parties hereto of their respective obligations
hereunder, (ii) any Loan or the use of the proceeds therefrom or
(iii) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses have resulted
from the gross negligence or willful misconduct of such Indemnitee. It is understood and agreed that, to the
extent not precluded by a conflict of interest, each Indemnitee shall endeavor
to work cooperatively
19
with the
Borrower with a view toward minimizing the legal and other expenses associated
with any defense and any potential settlement or judgment. To the extent reasonably practicable and not
disadvantageous to any Indemnitee, it is anticipated that a single counsel
selected by the Borrower may be used.
Settlement of any claim or litigation involving any material indemnified
amount will require the approvals of the Borrower (not to be unreasonably
withheld) and the relevant Indemnitee (not to be unreasonably withheld or
delayed).
SECTION 7.04. Successors
and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, the Lead
Arrangers and, to the extent expressly contemplated hereby, the Related Parties
of each of the Lead Arrangers, the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to
one or more of its Affiliates and, on and after the date that is eight weeks
after the Effective Date, to any Person, as assignees, all or a portion of its
rights and obligations under this Agreement (including all or a portion of the
Loans at the time owing to it); provided that (i) each of the
Borrower and the Administrative Agent must give its prior written consent to
such assignment (which consent shall not be unreasonably withheld) unless such
assignment is to an Affiliate of such Lender, (ii) each partial assignment of a
Lender’s rights and obligations shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations, (iii)
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500 payable by the assignor or the assignee, (iv) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire and (v) the assignee, if applicable, shall, prior
to the first date on which interest or fees are payable hereunder for its
account, deliver to the Borrower and the Administrative Agent the documentation
described in Section 2.13(e); provided, further that any
consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default has occurred and is continuing. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.13, 2.16, and 7.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent,
acting for this purpose as an agent of the Borrower, shall maintain at one of
its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the 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.
20
(d) Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee’s completed Administrative Questionnaire, the processing
and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the
consent of the Borrower or the Administrative Agent, sell participations to one
or more banks or other entities (each, a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 7.02 that affects such Participant. Subject to paragraph (f) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.12, 2.13
and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be
entitled to receive any greater payment under Section 2.12 or 2.13 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the
benefits of Section 2.13 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.13 as though it were a
Lender.
(g) Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any such pledge
or assignment to a Federal Reserve Bank, and this Section shall not apply
to any such pledge or assignment of a security interest; provided that
no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such assignee for such
Lender as a party hereto.
SECTION 7.05. Counterparts;
Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and any separate letter
agreements with respect to fees payable to the Lead Arrangers and the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.
21
SECTION 7.06. Governing
Law; Jurisdiction. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Each party hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement against any other party or its
properties in the courts of any jurisdiction.
SECTION 7.07. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 7.08. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (g)
with the consent of the Borrower or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Borrower. For the purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 7.09. USA
Patriot Act. Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that identifies
each borrower, guarantor or grantor (the “Loan Parties”), which information
includes the name and address of each Loan Party and other information that
will allow such Lender to identify such Loan Party in accordance with the Act.
22
SECTION 7.10. WAIVER
OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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GENWORTH FINANCIAL, INC.
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By
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/s/ Richard P. McKenney
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Name: Richard
P. McKenney
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Title: Senior Vice
President—Chief Financial Officer
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CITICORP NORTH
AMERICA, INC.,
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individually and as
Administrative Agent,
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By
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/s/ Peter C. Bickford
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Name: Peter
C. Bickford
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Title:Vice President
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Signature page for the
180-Day Bridge Credit Agreement, dated as of April 30, 2004, among
Genworth Financial, Inc. and the lenders party thereto.
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CITICORP NORTH
AMERICA, INC.
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[Name of Lender]
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By
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/s/ Peter C. Bickford
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Name: Peter
C. Bickford
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Title: Vice President
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Signature page for the 180-Day Bridge Credit Agreement, dated as of
April 30, 2004, among Genworth Financial, Inc. and the lenders party
thereto.
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DEUTSCHE BANK AG NEW YORK BRANCH
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By
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/s/ Michael Spiegel
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Name: Michael Spiegel
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Title: Managing Director
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/s/ Belinda Wheeler
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Name: Belinda Wheeler
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Title: Vice President
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Signature page for the 180-Day Bridge Credit Agreement, dated as of
April 30, 2004, among Genworth Financial, Inc. and the lenders party
thereto.
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Lehman Commercial Paper Inc.
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/s/ Janine M. Shugan
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Name: Janine M. Shugan
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Title: Authorized Signatory
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Signature page for the 180-Day Bridge Credit Agreement, dated as of
April 30, 2004, among Genworth Financial, Inc. and the lenders party
thereto.
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MORGAN STANLEY SENIOR FUNDING, INC.
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By
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/s/ Jaap L. Tonckens
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Name: Jaap L. Tonckens
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Title: Vice President
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Morgan Stanley Senior Funding
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Signature page for the 180-Day Bridge Credit Agreement, dated as of
April 30, 2004, among Genworth Financial, Inc. and the lenders party
thereto.
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GOLDMAN SACHS CREDIT PARTNERS L.P.
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By
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/s/ William Archer
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Name: William Archer
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Title: Authorized Signatory
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SCHEDULE 2.01
COMMITMENTS
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Lender
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Commitment
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Citicorp North America, Inc.
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$
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480,000,000
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Deutsche Bank AG New York Branch
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$
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480,000,000
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Lehman Commercial Paper Inc.
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$
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480,000,000
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Morgan Stanley Senior Funding, Inc.
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$
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480,000,000
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Goldman Sachs Credit Partners, L.P.
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$
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480,000,000
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2