EXHIBIT 10.3
May 3, 2005
MetLife, Inc.
One MetLife Plaza
Long Island City, NY 11101
Attention: Anthony J. Williamson
$7.0 Billion Senior Bridge Credit Facility
Ladies and Gentlemen:
Bank of America, N.A. ("BANK OF AMERICA"), itself or through one of its
affiliates, is pleased to offer to be the sole and exclusive administrative
agent (in such capacity, the "ADMINISTRATIVE AGENT") for a $7.0 Billion Senior
Bridge Credit Facility (the "SENIOR CREDIT FACILITY") to MetLife, Inc.
("METLIFE" or the "BORROWER"). Each of Bank of America (itself or through one of
its affiliates) and Goldman Sachs Credit Partners L.P. ("GOLDMAN SACHS") is
pleased to offer its several commitment to lend up to $3.5 Billion of the Senior
Credit Facility, upon and subject to the terms and conditions of this letter and
the Summary of Terms and Conditions attached hereto (the "SUMMARY OF TERMS").
Goldman Sachs is pleased to offer to be a syndication agent for the Senior
Credit Facility. Each of Banc of America Securities LLC ("BAS") and Goldman
Sachs is pleased to advise you of its willingness in connection with the
foregoing commitments, as a joint lead arranger and book manager (together, the
"LEAD ARRANGERS") for the Senior Credit Facility, to use its several best
efforts to form a syndicate of financial institutions (the "LENDERS") reasonably
acceptable to you for the Senior Credit Facility.
Bank of America will act as sole and exclusive Administrative Agent for the
Senior Credit Facility, Goldman Sachs will act as a syndication agent for the
Senior Credit Facility, and BAS and Goldman Sachs will act sole and exclusive
Lead Arrangers for the Senior Credit Facility. No additional agents, co-agents
or arrangers will be appointed and no other titles will be awarded without the
mutual agreement of Bank of America, the Lead Arrangers and the Borrower.
The commitment of each of Bank of America and Goldman Sachs hereunder and the
undertaking of each of the Lead Arrangers to provide the services described
herein are subject to the satisfaction of each of the following conditions
precedent in a manner reasonably acceptable to Bank of America and the Lead
Arrangers: (a) the accuracy and completeness in all material respects of all
representations that you and your affiliates make to Bank of America and the
Lead Arrangers and your compliance with the terms of this Commitment Letter
(including the Summary of Terms); (b) prior to and during the syndication of the
Senior Credit Facility there shall be no competing offering, placement or
arrangement of any bank financing by or on behalf of the Borrower or any of its
subsidiaries, except for (i) a potential refinancing of the Senior Credit
Facilities of Reinsurance Group of America, Incorporated and its subsidiaries,
(ii) the not yet closed amended and restated five-year credit agreement for the
Borrower, MetLife Funding, Inc. and, to the limited extent set forth therein,
Metropolitan Life Insurance Company and (iii) various letter of credit
agreements with respect to which Metropolitan Life Insurance Company may be an
applicant; (c) the negotiation, execution and delivery of definitive
documentation for the Senior Credit Facility consistent with the Summary of
Terms and otherwise satisfactory to Bank of America and the Lenders and, if the
funding of the Senior Credit Facility subsequently occurs, the satisfaction of
the conditions precedent to funding set forth in such definitive documentation;
(d) no material adverse change in or material disruption of conditions in the
market for syndicated bank credit facilities or the financial, banking or
capital markets generally shall have occurred that, in the reasonable judgment
of Bank of
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America and the Lead Arrangers, would impair the syndication of the Senior
Credit Facility; and (e) no change, occurrence or development since December 31,
2004 shall have occurred or become known to Bank of America and the Lead
Arrangers that would reasonably be expected to have a material adverse effect on
the business, assets, or condition (financial or otherwise) of the Borrower and
its subsidiaries, taken as a whole.
The Lead Arrangers intend to commence syndication efforts promptly upon your
acceptance of this Commitment Letter and the commitments of each of Bank of
America and Goldman Sachs shall be reduced on an equal pro rata basis by the
amount of any commitment received from any other Lender. You agree to actively
assist the Lead Arrangers in achieving a syndication of the Senior Credit
Facility that is satisfactory to them. Such assistance shall include (a) your
providing and causing your advisors to provide Bank of America, the Lead
Arrangers and the other Lenders upon request with all information reasonably
deemed necessary by us to complete syndication; (b) your assistance in the
preparation of an Information Memorandum (including, if requested by the Lead
Arrangers, an Information Memorandum that does not contain material non-public
information concerning the Borrower, its affiliates or its securities), if any,
to be used in connection with the syndication of the Senior Credit Facility; (c)
your using commercially reasonable efforts to help enable that the syndication
efforts of the Lead Arrangers benefit from your existing banking relationships;
and (d) otherwise assisting Bank of America and the Lead Arrangers in their
syndication efforts. The Borrower also acknowledges and agrees that unless
conspicuously labeled "PUBLIC" by the Borrower, all information provided by the
Borrower to Bank of America or either Lead Arranger for dissemination to
prospective Lenders, whether electronically or otherwise, shall be treated by
Bank of America and the Lead Arrangers as material non-public information with
respect to the Borrower, its affiliates or its securities and such information
shall not be provided by Bank of America or either Lead Arranger to any
prospective Lender that does not wish to receive such information.
It is understood and agreed that the Lead Arrangers will manage and control all
aspects of the syndication after consultation with you, including decisions as
to the selection of prospective Lenders and any titles offered to proposed
Lenders, when commitments will be accepted and the final allocations of the
commitments among the Lenders; provided, that such decisions shall be subject to
your consent. It is understood that no Lender participating in the Senior Credit
Facility will receive compensation from you in order to obtain its commitment,
except on the terms contained herein and in the Summary of Terms.
You hereby represent, warrant and covenant that all information which has been
or is hereafter made available in writing to Bank of America, the Lead Arrangers
or the Lenders by you or any of your representatives (or on your or their
behalf) in connection with the transactions contemplated hereby (the
"INFORMATION") is and will be complete and correct in all material respects and
does not and will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained therein not
misleading. You agree to furnish us in writing such Information as we may
reasonably request and to supplement the Information from time to time until the
Closing (as defined in the Summary of Terms) for the Senior Credit Facility so
that the representation, warranty and covenant in the preceding sentence is
correct at Closing. In issuing this commitment and in arranging and syndicating
the Senior Credit Facility, Bank of America and the Lead Arrangers are and will
be using and relying on the Information without independent verification
thereof.
By executing this Commitment Letter, you agree to reimburse Bank of America and
the Lead Arrangers from time to time on demand for all reasonable out-of-pocket
fees and expenses (including, but not limited to, the reasonable fees,
disbursements and other charges of Haynes and Boone, LLP, as sole counsel to the
Lead Arrangers and the Administrative Agent) incurred in connection with the
Senior Credit Facility, the syndication thereof and the preparation of the
definitive documentation.
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You agree to indemnify and hold harmless Bank of America, each Lead Arranger,
each Lender and each of their affiliates and their respective officers,
directors, employees, agents, advisors and other representatives (each, an
"INDEMNIFIED PARTY") from and against (and will reimburse each Indemnified Party
as the same are incurred for) any and all claims, damages, losses, liabilities
and expenses (including, without limitation, the reasonable fees, disbursements
and other charges of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) any matters contemplated by this Commitment Letter, except
to the extent such claim, damage, loss, liability or expense is found in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or proceeding to which the indemnity
in this paragraph applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by you, your equity holders
or creditors or an Indemnified Party, whether or not an Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. If for any reason (other than the exception set forth in
the second preceding sentence) the foregoing indemnity is not available to any
Indemnified Party, you agree to contribute to the amount of the claims, damages,
losses, liabilities and expenses incurred by or awarded against such Indemnified
Party in such equitable proportion as will reflect the relative economic
interests of you and such Indemnified Party in the matters contemplated by this
Commitment Letter as well as the relative fault of you and such Indemnified
Party with respect to such claims, damages, losses, liabilities and expenses.
You also agree that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to you or your
subsidiaries or affiliates arising out of, related to or in connection with any
aspect of this Commitment Letter for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages). It is further agreed
that each of Bank of America and Goldman Sachs shall be liable solely in respect
of its own commitment to the Senior Credit Facility on a several, and not joint,
basis, and that such liability shall only arise to the extent damages have been
caused by a breach of Bank of America's and Goldman Sachs' obligations hereunder
to negotiate in good faith definitive documentation for the Senior Credit
Facility on the terms set forth herein as determined in a final non-appealable
judgment by a court of competent jurisdiction. Notwithstanding any other
provision of this Commitment Letter, no Indemnified Party shall be liable for
any damages arising from the use by others of information or other materials
obtained through electronic telecommunications or other information transmission
systems.
This Commitment Letter and the contents hereof are confidential and, except for
disclosure hereof or thereof on a confidential basis to your accountants,
attorneys and other professional advisors retained by you or employed by your
affiliate MetLife Group, Inc. in connection with the Senior Credit Facility or
as otherwise required by law, may not be disclosed in whole or in part to any
person or entity without our prior written consent; provided, however, it is
understood and agreed that you may disclose this Commitment Letter (including
the Summary of Terms), after your acceptance of this Commitment Letter, in
filings with the Securities and Exchange Commission and other applicable
regulatory authorities and stock exchanges, some of which may be required to
make this Commitment Letter and the Summary of Terms public. Further, Bank of
America and the Lead Arrangers shall be permitted to use information related to
the syndication and arrangement of the Senior Credit Facility in connection with
marketing, press releases or other transactional announcements or updates
provided to investor or trade publications, subject to confidentiality
obligations or disclosure restrictions provided herein or otherwise reasonably
requested by the Borrower provided that the content and timing of any such press
releases/transactional updates shall be reasonably acceptable to the Borrower.
Notwithstanding anything herein to the contrary, any party hereto may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the Senior Credit Facility and all materials of any kind
(including opinions or other tax analyses) that are provided to such party
relating to such tax treatment and tax structure. However, any information
relating to the tax treatment or tax structure shall remain subject to the
confidentiality
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provisions hereof (and the immediately preceding sentence shall not apply) to
the extent reasonably necessary to enable the parties hereto, their respective
affiliates, and their and their respective affiliates' directors and employees
to comply with applicable securities laws.
You acknowledge that Bank of America and the Lead Arrangers or their affiliates
may be providing financing or other services to parties whose interests may
conflict with yours. Bank of America and the Lead Arrangers severally agree that
they will not furnish confidential information obtained from you to any of their
other customers or any other person except the other Lenders and prospective
Lenders and as required by law or pursuant to legal process and that they will
treat confidential information relating to you and your affiliates with the same
degree of care as they treat their own confidential information. Bank of America
and the Lead Arrangers further advise you that they will not make available to
you confidential information that they have obtained or may obtain from any
other customer. In connection with the services and transactions contemplated
hereby, and only in such connection, you agree that Bank of America and the Lead
Arrangers are permitted to access, use and share with any of their bank or
non-bank affiliates, agents, advisors (legal or otherwise) or representatives
any information concerning you or any of your affiliates that is or may come
into the possession of Bank of America or the Lead Arrangers or any of such
affiliates. Bank of America and the Lead Arrangers hereby notify you 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"), each of them is required to
obtain, verify and record information that identifies you, which information
includes your name and address and other information that will allow Bank of
America and the Lead Arrangers, as applicable, to identify you in accordance
with the Act.
The provisions of the immediately preceding four paragraphs shall remain in full
force and effect regardless of whether any definitive documentation for the
Senior Credit Facility shall be executed and delivered, and notwithstanding the
termination of this letter or any commitment or undertaking hereunder.
This Commitment Letter may be executed in counterparts which, taken together,
shall constitute one original. Delivery of an executed counterpart of this
Commitment Letter by telecopier or facsimile shall be effective as delivery of a
manually executed counterpart thereof.
This Commitment Letter shall be governed by, and construed in accordance with,
the laws of the State of New York. Each of you, Bank of America and the Lead
Arrangers hereby irrevocably waives any and all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Commitment Letter (including,
without limitation, the Summary of Terms), the transactions contemplated hereby
or the actions of Bank of America and the Lead Arrangers in the negotiation,
performance or enforcement hereof. The commitments and undertakings of each of
Bank of America and the Lead Arrangers may be terminated by it, if you fail to
perform your obligations under this Commitment Letter on a timely basis.
This Commitment Letter, together with the Summary of Terms, embodies the entire
agreement and understanding among Bank of America and the Lead Arrangers, you
and your affiliates with respect to the Senior Credit Facility and supersedes
all prior agreements and understandings relating to the specific matters hereof.
Those matters that are not covered or made clear herein or in the Summary of
Terms are subject to mutual agreement of the parties. This Commitment Letter may
be modified or amended only by the written agreement of all the parties hereto.
No party has been authorized by Bank of America, either Lead Arranger or you to
make any oral or written statements that are inconsistent with this Commitment
Letter. This Commitment Letter is not assignable by the Borrower without our
prior written consent and is intended to be solely for the benefit of the
parties hereto and the Indemnified Parties.
This offer will expire at 5:00 p.m. New York time on May 4, 2005 unless you
execute this letter and return it to us prior to that time (which may be by
facsimile transmission), whereupon this letter (which may be signed in one or
more counterparts) shall become a binding agreement. Thereafter, this
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undertaking and commitment will expire on May 16, 2005 unless definitive
documentation for the Senior Credit Facility is executed and delivered prior to
such date. In consideration of the time and resources that Bank of America and
the Lead Arrangers will devote to the Senior Credit Facility, you agree that,
until such expiration, you will not solicit, initiate, entertain or permit, or
enter into any discussions in respect of, any offering, placement or arrangement
of any competing bank financing for the Borrower and its subsidiaries, except
for the financings described in clause (b) of the third paragraph of this
Commitment Letter.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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We are pleased to have the opportunity to work with you in connection with this
important financing.
Very truly yours,
BANK OF AMERICA, N.A.
By: /s/ Leslie Nannen
--------------------------------------
Name: Leslie Nannen
--------------------------
Title: Senior Vice President
-------------------------
BANC OF AMERICA SECURITIES LLC
By: /s/ Jonathan Mullen
--------------------------------------
Name: Jonathan Mullen
--------------------------
Title: Principal
-------------------------
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ William W. Archer
--------------------------------------
Name: William W. Archer
--------------------------
Title: Managing Director
-------------------------
SIGNATURE PAGE TO COMMITMENT LETTER
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
METLIFE, INC.
By: /s/ Anthony J. Williamson
-------------------------------------------------
Title: SVP and Treasurer
SIGNATURE PAGE TO COMMITMENT LETTER
Confidential MetLife, Inc.
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SUMMARY OF TERMS AND CONDITIONS
METLIFE, INC.
$7.0 BILLION SENIOR BRIDGE CREDIT FACILITY
BORROWER: MetLife, Inc. ("MetLife" or the "Borrower").
JOINT LEAD ARRANGERS AND
BOOK MANAGERS: Banc of America Securities LLC ("BAS") and
Goldman Sachs Credit Partners L.P. ("Goldman
Sachs," and together with BAS, the "Lead
Arrangers").
ADMINISTRATIVE AGENT: Bank of America, N.A. or one of its
affiliates (the "Administrative Agent" or
"Bank of America") will act as sole and
exclusive administrative agent.
SYNDICATION AGENT: Goldman Sachs will act as a syndication
agent.
OTHER AGENTS: To be determined.
LENDERS: A syndicate of financial institutions
(including Bank of America and Goldman
Sachs) arranged by the Lead Arrangers, which
institutions shall be acceptable to the
Borrower and the Administrative Agent
(collectively, the "Lenders").
SENIOR BRIDGE
CREDIT FACILITY: An aggregate principal amount of up to $7.0
billion will be available upon the terms and
conditions hereinafter set forth (the
"Bridge Facility") to bridge the issuance of
to be determined amounts of Senior Notes,
Mandatory Convertible Securities, Perpetual
Preferred Securities or other debt or equity
securities (collectively the "Securities"),
other than the equity securities to be
issued to Citigroup Inc. as part of the
purchase price for the Transaction. The
Bridge Facility shall be drawn in a single
advance at Funding. The unutilized portion
of any commitment under the Bridge Facility
shall be cancelled immediately following
such advance.
PURPOSE: The Bridge Facility shall be used to finance
a portion of the purchase price for the
acquisition (the "Transaction") of The
Travelers Life and Annuity Company, The
Travelers Insurance Company, and certain of
their subsidiaries (collectively, the
"Acquired Company") pursuant to the terms
and conditions of the Acquisition Agreement
(herein so called) dated January 31, 2005,
between the Borrower and Citigroup Inc., as
such terms and conditions may be amended or
waived from time to time, and to pay costs
and expenses associated with the
Transaction.
CLOSING: The execution of definitive loan
documentation shall occur on or before May
16, 2005 ("Closing").
FUNDING: The funding of the Bridge Facility shall
occur on the same date as the closing of the
Transaction, but in no event later than the
first business day of February, 2006
("Funding").
INTEREST RATES: As set forth in Addendum I.
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Confidential MetLife, Inc.
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MATURITY: The Bridge Facility shall terminate and all
amounts outstanding thereunder shall be due
and payable 364 days from the Trigger Date
(as defined in Addendum I).
OPTIONAL PREPAYMENTS
AND COMMITMENT REDUCTIONS: The Borrower may prepay the Bridge Facility
in whole or in part at any time without
penalty, subject to reimbursement of the
Lenders' breakage and redeployment costs in
the case of prepayment of a LIBOR borrowing.
Prior to Funding, the Borrower may reduce or
terminate the commitments of the Lenders
under the Bridge Facility upon notice to the
Administrative Agent.
MANDATORY PREPAYMENTS;
REDUCTION AND TERMINATION
OF COMMITMENTS: Mandatory prepayments shall be required
from, and in an amount equal to, 100% of the
net cash proceeds from the issuance of the
Securities. If the Securities are issued at
or prior to Funding, the commitments of the
Lenders shall be reduced by an amount equal
to 100% of the net cash proceeds from the
issuance thereof.
Upon the occurrence of a Change in Control,
upon the request of Lenders holding
commitments (if prior to Funding) or loans
(if after Funding) representing more than
50% of the commitments or loans, as the case
may be, the commitments will terminate (if
prior to Funding) or the Borrower shall
prepay the Loans in full (if after Funding).
The commitments of the Lenders under the
Bridge Facility shall be automatically
terminated on the first business day of
February, 2006 if Funding has not occurred
on or before such date.
CONDITIONS PRECEDENT
TO CLOSING: Closing of the Bridge Facility will be
subject to satisfaction of the conditions
precedent deemed appropriate by the
Administrative Agent and the Lead Arrangers
including, but not limited to, the
following:
(i) Documentation: The negotiation,
execution and delivery of
definitive documentation
(including, without limitation,
satisfactory legal opinions and
other customary closing documents)
for the Bridge Facility
satisfactory to the Administrative
Agent and the Lenders.
(ii) Material Adverse Change: There
shall not have occurred a material
adverse change since December 31,
2004 in the business, assets, or
condition (financial or otherwise)
of the Borrower and its
subsidiaries taken as a whole.
CONDITIONS PRECEDENT
TO FUNDING: Funding of the Bridge Facility will be
subject to satisfaction of the conditions
precedent set forth in the definitive
documentation for the Bridge Facility,
including, but not limited to, the
following:
(i) Material Adverse Change: There
shall not have occurred a material
adverse change since December 31,
2004 in the
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Confidential MetLife, Inc.
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business, assets, or condition
(financial or otherwise) of the
Borrower and its subsidiaries taken
as a whole.
(ii) Concurrent Transactions. (a) The
Borrower shall have available all
other funds necessary to consummate
the Transaction and (b) the
Transaction shall be consummated in
accordance with the terms and
conditions therefor, as set forth
in the Acquisition Agreement (as in
effect on its date of execution,
which Acquisition Agreement has
been reviewed by the Administrative
Agent and the Lead Arrangers and
found to be acceptable to them),
with such amendments or waivers of
such terms and conditions as do
not, when taken as a whole, in the
reasonable opinion of the
Administrative Agent and the Lead
Arrangers, materially adversely
affect the ability of the Borrower
to timely pay and perform its
obligations under the Bridge
Facility.
(iii) Credit Ratings. The Administrative
Agent shall have received
assurances reasonably satisfactory
to it that the Borrower shall have
minimum senior unsecured debt
ratings from Standard & Poor's
Rating Group ("S&P") and Moody's
Investors Service, Inc. ("Moody's")
of at least A- and A3,
respectively, both before and after
giving effect, on a pro forma
basis, to the Transaction, the
Funding and related transactions.
(iv) Financial Statements. The Borrower
shall have delivered an unaudited
pro forma balance sheet of the
Borrower and its subsidiaries which
gives effect to the Transaction as
if it had occurred on December 31,
2004 (and, if available, at the end
of a more recent fiscal quarter) of
the Borrower and the Acquired
Company ended prior to Funding.
(v) Bring-Down Opinions, Etc. The
Administrative Agent shall have
received such bring-down opinions
of counsel to the Borrower, and
such other documents and
certificates, as the Administrative
Agent may reasonably request.
(vi) Representations. All
representations and warranties set
forth in the definitive loan
documentation for the Bridge
Facility shall be true and correct
as of the date of Funding.
(vii) No Default. No event of default
under the Bridge Facility or
unmatured default shall have
occurred and be continuing on the
date of Funding, or result from
Funding.
(viii) Funding by Certain Date. Funding
shall have occurred on or before
the first business day of February,
2006.
MATERIAL SUBSIDIARY: As defined in the Five-Year Credit Agreement
dated April 22, 2005, among the Borrower,
MetLife Funding, Inc., certain lenders and
Bank of America, as administrative agent and
letter of credit issuer (the "Existing
Credit Agreement").
REPRESENTATIONS
AND WARRANTIES: Similar to those in the Existing Credit
Agreement, to include without limitation:
(i) corporate existence and status; (ii)
corporate power and
authority/enforceability; (iii) no violation
of law or contracts or
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Confidential MetLife, Inc.
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organizational documents; (iv) no material
litigation; (v) correctness of specified
financial statements and no material adverse
change; (vi) no required governmental or
third party approvals for the Transaction or
the Bridge Facility that have not been
obtained (or waived) and are not in full
force and effect; (vii) use of
proceeds/compliance with margin regulations
(based on the assumption that no Lender is a
broker-dealer); (viii) properties; (ix)
status under Investment Company Act; (x)
ERISA matters; (xi) environmental matters;
(xii) payment of taxes; (xiii) accuracy of
disclosure; and (xiv) delivery of a true,
correct and complete copy of the Acquisition
Agreement and all amendments thereto and the
effectiveness thereof.
COVENANTS: Similar to those in the Existing Credit
Agreement, to include without limitation:
(i) delivery of financial statements,
compliance certificates and notices of
default; (ii) compliance with laws and
material contractual obligations; (iii)
payment of taxes; (iv) maintenance of
insurance; (v) use of proceeds; (vi)
limitation on liens, mergers, and sales of
assets; and (vii) limitation on transactions
with affiliates.
Financial covenants:
- The Borrower will not permit
Metropolitan Life Insurance Company
to have on a quarterly basis an
Adjusted Statutory Surplus (as
defined in the Existing Credit
Agreement) of less than $7.75
billion.
- The Borrower will not permit The
Travelers Insurance Company to have
on a quarterly basis a Risk-Based
Capital Ratio (as defined in the
Amended and Restated 5-Year Letter
of Credit and Reimbursement
Agreement dated as of April 25,
2005, among The Travelers Life and
Annuity Reinsurance Company, the
Borrower, certain lenders and
Citibank, N.A. and Wachovia Bank,
National Association, as
Co-Administrative Agents) of less
than 2.50 to 1.
- The Borrower will not permit on a
quarterly basis its Consolidated
Net Worth (as defined in the
Existing Credit Agreement) to be
less than $15 billion.
EVENTS OF DEFAULT: Similar to those in the Existing Credit
Agreement (including notice and/or grace
periods), to include without limitation: (i)
nonpayment of principal, interest, fees or
other amounts, (ii) violation of covenants
(with cure periods as applicable), (iii)
inaccuracy of representations and
warranties, (iv) cross-default to other
material agreements and indebtedness, (v)
bankruptcy and other insolvency events, (vi)
material judgments, and (vii) ERISA matters.
ASSIGNMENTS AND
PARTICIPATIONS: Each Lender will be permitted to make
assignments in acceptable minimum amounts to
other financial institutions approved by the
Borrower (so long as no event of default
under the Bridge Facility has occurred and
is continuing) and the Administrative Agent,
which approvals shall not be unreasonably
withheld or delayed. Lenders will be
permitted to sell participations with voting
rights limited to significant matters such
as changes in amount, rate and maturity
date.
WAIVERS AND AMENDMENTS: Amendments and waivers of the provisions of
the definitive loan documentation for the
Bridge Facility will require the approval of
Lenders
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holding commitments or loans, as applicable,
representing more than 50% of the aggregate
amount of commitments or loans, as
applicable, under the Bridge Facility,
except that the consent of all the Lenders
affected thereby shall be required with
respect to (i) increases in the commitments
of such Lenders, (ii) reductions of
principal, interest or fees, (iii)
extensions of scheduled maturities or times
for payment, and (iv) waivers of Conditions
Precedent to Funding.
INDEMNIFICATION: The Borrower shall indemnify the
Administrative Agent, the Lead Arrangers,
and the Lenders and their respective
affiliates from and against all losses,
liabilities, claims, damages or expenses
arising out of or relating to the Bridge
Facility, including, but not limited to,
reasonable attorneys' fees and settlement
costs, except to the extent determined by a
court to have arisen from the indemnified
person's gross negligence or willful
misconduct. This indemnification shall
survive and continue for the benefit of the
indemnitees at all times after the
Borrower's acceptance of the Lenders'
commitments for the Bridge Facility,
notwithstanding any failure of the Bridge
Facility to close.
GOVERNING LAW: State of New York.
PRICING/FEES/EXPENSES: As set forth in Addendum I.
OTHER: This Summary of Terms is intended as an
outline of certain of the material terms of
the Bridge Facility and does not purport to
summarize all of the conditions, covenants,
representations, warranties and other
provisions which would be contained in
definitive documentation for the Bridge
Facility contemplated hereby. The Borrower
shall waive its right to a trial by jury.
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ADDENDUM I
PRICING, FEES AND EXPENSES
COMMITMENT FEE: The Borrower will pay a fee (the "Commitment
Fee"), at a rate per annum determined in
accordance with the Performance Pricing
table set forth below, on each Lender's
commitment amount. The Commitment Fee shall
commence to accrue on the date (the "Trigger
Date") that is the earlier of (i) the
seventh day prior to Funding and (ii) June
24, 2005. The Commitment Fee accrued from
time to time shall be payable upon Funding
and, if Funding has not occurred on or
before such dates, on the first business day
of October, 2005, January, 2006 and
February, 2006). The Commitment Fee shall
also be payable on any business day after
the Trigger Date on which the commitments of
the Lenders under the Bridge Facility are
terminated.
INTEREST RATES: The loans under the Bridge Facility will
bear interest at a rate equal to, at the
option of the Borrower, (i) LIBOR plus the
Applicable Margin, as determined in
accordance with the Performance Pricing
table set forth below, or (ii) the Alternate
Base Rate (to be defined as the higher of
(a) the Bank of America prime rate and (b)
the Federal Funds rate plus .50%).
The Borrower may select interest periods of
1, 2, 3 or 6 months for LIBOR loans, subject
to availability. Interest shall be payable
at the end of the selected interest period,
but no less frequently than quarterly.
A default rate of 2% above the otherwise
applicable interest rate shall apply as
provided in the Existing Credit Agreement.
PERFORMANCE
PRICING: The Commitment Fee and Applicable Margin for
LIBOR Loans shall be, at any time, the rate
per annum (in bps) set forth in the table
below opposite the long term unsecured
senior, non-credit enhanced debt rating of
the Borrower by Standard & Poor's Ratings
Group and Moody's Investors Service Inc. (In
the case of a split rating, the higher
rating will apply and in the case of a
multiple split rating, the rating that is
one level higher than the lower rating will
apply.)
DEBT RATING COMMITMENT FEE APPLICABLE MARGIN FOR
LIBOR LOANS
= or > A+/A1 6.0 25.0
A/A2 7.0 30.0
<A/A2 9.0 40.0
CONTINUATION FEE: If the Bridge Facility has not been paid in
full and cancelled on or prior to the day
that is the later of (i) 180 days after the
Trigger Date and (ii)
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90 days after Funding, the Borrower will pay
a one-time fee (the "Continuation Fee") of
10.0 basis points on the then outstanding
principal balance of the Bridge Facility.
The Continuation Fee will be for the account
of each Lender under the Bridge Facility
based on that Lender's share of the then
outstanding principal balance of the Bridge
Facility. Such Continuation Fee, if payable,
is due and payable on the date that is the
later of (a) 180 days after the Trigger Date
and (b) 90 days after Funding.
CALCULATION OF
INTEREST AND FEES: Other than calculations in respect of
interest at the Bank of America prime rate
(which shall be made on the basis of actual
number of days elapsed in a 365/366 day
year), all calculations of interest and fees
shall be made on the basis of actual number
of days elapsed in a 360 day year.
COST AND YIELD
PROTECTION: Similar to those in the Existing Credit
Agreement, including, without limitation, in
respect of breakage or redeployment costs
incurred in connection with prepayments,
changes in capital adequacy and capital
requirements or their interpretation,
illegality, unavailability, reserves without
proration or offset and payments free and
clear of withholding or other taxes.
EXPENSES: The Borrower will pay all reasonable costs
and expenses associated with the
preparation, due diligence, administration,
syndication and closing of all loan
documentation, including, without
limitation, the legal fees of one counsel to
the Administrative Agent and the Lead
Arrangers, regardless of whether or not the
Bridge Facility is closed. The Borrower will
also pay the expenses of the Administrative
Agent and each Lender in connection with the
enforcement of any loan documentation.
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